Occupation

T. Ferraro – Determining the beginning and end of an occupation under international humanitarian lawthe existence of a state of occupation over the rest of the territory. Yoram Dinsteinexplains:Should the occupying power be expelled from – or lose its grip over – anoccupied territory, in whole or in part, the occupation in the area concerned isterminated. Over time, the territory subject to the effective control of anoccupying power is likely to grow or shrink in size, and the fluctuations may beegregious ...The ebb and flow in the extent of the territory subject tobelligerent occupation may be the direct outcome of battlefield victories ordefeats. 61Therefore, local armed resistance may be of great significance and, in certaincircumstances, might even challenge the authority of the foreign forces to such anextent that the latter would no longer qualify as an Occupying Power within themeaning of IHL.There is another issue to be considered: what role does interpreting thenotion of authority play in determining the end of occupation? It has been arguedthat some form of transfer of authority, from the former occupant to the localgovernment, should occur to make it unambiguously clear that the occupation hasended: for instance, the local government’s authority should replace that previouslyexerted by the occupant. For the supporters of such position, any transfer ofcompetences short of such a complete handover would prolong the state ofoccupation and the application of occupation law (with regard to the responsibilitiesof the foreign forces). 62It is submitted here that it is difficult to find a basis under lex lata forthis position. Empowering the local government is not a precondition for endingan occupation, since IHL is silent on the issue. In fact, a situation in whichforeign troops completely withdraw from territory they had occupied, leavingbehind them a vacuum of authority, has already been tackled, by the Eritrea–Ethiopia Claims Commission. 63 It can be inferred from the Commission’sjurisprudence that one cannot justify on the basis of IHL the continued applicationof occupation law to foreign forces that have withdrawn completely from a territoryformerly under their effective control and that no longer exert key elements ofauthority therein.Absence of consent from the local governmental authority: a necessityMilitary occupation is by definition an asymmetric relationship: the existence of anoccupation implies that foreign forces are imposing their authority over thegovernment of the occupied territory by coercive, military, means. Therefore, thedistinguishing features of a military occupation within the meaning of IHL willalways be a) its coercive character and b) the related absence of consent. These are61 Y. Dinstein, above note 15, p. 45.62 M. Bothe, above note 15, p. 29; Gisha, above note 31, pp. 82 ff.63 Eritrea–Ethiopia Claims Commission, Partial Awards: Central Front - Eritrea’s Claims 2, 4, 6, 7, 8 & 22,paras. 67, 71, 83–84.152