Occupation

T. Ferraro – Determining the beginning and end of an occupation under international humanitarian lawpermit the foreign troops to enforce the rights and duties granted to them byoccupation law.This assertion is corroborated by the legal literature, which has establishedthe notion of effective control as a central element in the issue of occupation. 21 Acareful examination of the international jurisprudence, 22 and of the content of somemilitary manuals, also supports the assertion that the notion of effective control is atthe heart of the concept of occupation 23 and should be the starting point fordevising a test for determining the existence of an occupation. In this regard,‘effective control’ is an essential concept as it substantiates and specifies the notionof ‘authority’ lying at the heart of the definition of occupation contained in Article42 of the Hague Regulations. As such, effective control is the main characteristic ofoccupation as, under IHL, there cannot be occupation of a territory without effectivecontrol exercised therein by hostile foreign forces.Therefore, the notion of effective control has to be examined more closely.This will enable us to identify the criteria for defining occupation for the purposesof IHL.between occupation and blockade during the negotiations related to the Brussels Declaration of 1874. Atthe discussions that took place during the drafting process of this Declaration, the delegates, almostwithout exception, pointed out the similarities between occupation and blockade: both had to be effectiveto be said to exist for the purposes of the law of armed conflict. See M. Zwanenburg, above note 15, p. 102;Shane Darcy and John Reynolds, ‘“Otherwise occupied”: the status of the Gaza Strip from the perspectiveof international humanitarian law’, inJournal of Conflict and Security Law, Vol. 15, No. 2, 2010,pp. 218–220; T. J. Lawrence, The Principles of International Law, 6th edition, Macmillan & Co, London,1917, pp. 435–436; James Molony Spaight, War Rights on Land, Macmillan & Co, London, 1911,pp. 328–329. It was argued that, just as blockades are not recognized unless they are effective, the existenceof occupations, too, must be decided on the basis of effective control. In this regard, a consensus emergedamong the delegates indicating that, in fact, an occupation would come into existence only to the extent towhich the foreign army could exercise a certain degree of control over the territory in question. See DorisA. Graber, The Development of the Law of Belligerent Occupation, 1863–1914: A Historical Survey,Columbia University Press, New York, 1949.21 Georg Schwarzenberg, International Law as Applied by International Courts and Tribunals, Vol. 2: TheLaw of Armed Conflict, Stevens, London, 1968, pp. 274–276. The same position had previously beenexpressed by G. Von Glahn, above note 15, pp. 27–29. See also E. Benvenisti, above note 15, p. 4, whodefined occupation as ‘the effective control of a power (be it one or more states or an internationalorganization such as the UN) over a territory to which that power has no sovereign title, without thevolition of the sovereign of that territory’. More recently, Yoram Dinstein described the notion of effectivecontrol as indispensable for the purposes of determining the existence of an occupation (Y. Dinstein,above note 15, pp. 42–43). Finally, Robert Kolb and Sylvain Vité say that, for determining the existence ofan occupation, ‘tout revient à se demander à partir de quel moment le contrôle de l’armée ennemie estsuffisamment effectif au sens de l’article 42 du Règlement de 1907’, inLe droit de l’occupation militaire:perspectives historiques et enjeux juridiques actuels, Bruylant, Bruxelles, 2009, p. 142.22 ICTY, Prosecutor v. Duško Tadić, Trial Chamber, Judgment, 7 May 1997, Case No. IT-94-1-T, para. 580:‘Whether or not the victims were “protected persons” depends on when it was that they fell into the handsof the occupying forces. The exact moment when a person or area falls into the hands of a party to aconflict depends on whether that party has effective control over an area’. See also, ICJ, DRC v. Uganda,above note 3 para. 175.23 For example, US Army, Field Manual 27-10, above note 5, section 352 (addressing the distinction betweeninvasion and occupation), indicates that ‘an invader may attack with naval or air forces or its troops maypush rapidly through a large portion of enemy territory without establishing that effective control which isessential to the status of occupation’. See also UK, Manual, above note 16, section 11.7; Italy, Manuale didiritto umanitario, Stata maggiore della Difesa, SMD-G-014, 1991, p. 12 at 32; New Zealand, Interim Lawof Armed Conflict Manual, above note 5, 1302; Germany, Humanitäres Völkerrecht, above note 16,para. 526; Canada, Joint Doctrine Manual, above note 5, para. 1203.7.140