Occupation

Volume 94 Number 885 Spring 2012international coalition is/are the Occupying Power(s)? The question has veryimportant practical consequences albeit it did not generate much legal debate at thetime. 83There are two options for determining which states involved in amultinational operation exercising effective control over a territory can be classifiedas Occupying Powers for the purposes of IHL. 84 The first option consists of applyingto each state in a coalition, separately, the legal criteria developed earlier in thisarticle. In order to qualify as an Occupying Power for the purposes of IHL, eachmember of the coalition would need to have troops deployed on the ground withoutthe consent of the local governmental authority and be in a position to exertauthority, in lieu of the displaced local government, over those parts of the occupiedterritory it was assigned to.The ICRC chose a different option to deal with the occupation of Iraq in2003. This involves taking a so-called functional approach to occupation by acoalition. 85 In addition to the states that individually fulfil the criteria of theeffective-control test, other coalition members who perform functions and tasks thatwould typically be carried out by an Occupying Power, and for which respectingoccupation law would be relevant, should be classified as Occupying Powers and bebound by the rules contained in the relevant instruments of occupation law. In otherwords, it would be the actions of the foreign forces, and the functions assigned tothem, that turned them into Occupying Powers.Despite the relevance of the functional approach proposed above, inpractice it remains difficult to differentiate the legal status under IHL of the variousmembers of a coalition occupying a country, when one takes into account theexistence of a sliding scale of activities ranging from humanitarian assistance toexercise of administrative authority on behalf of the Occupying Powers. In fact,carrying out tasks under the command or instruction of the ‘recognized’ OccupyingPowers would tend to confer the status of Occupying Power on those co-operatingwith these Occupying Powers, particularly when such tasks are essential to thefulfilment of the administrative responsibilities stemming from the law ofoccupation. 8683 D. Thürer and M. MacLaren, above note 18, pp. 759–762.84 A complementary approach based on the law of state responsibility may also be used. The InternationalLaw Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts couldbe a useful tool in this regard, for distinguishing members of a coalition involved in an occupation fromthose who should not be classified as Occupying Powers. According to this view, if the actions of amember state’s armed forces could be attributed exclusively to the organization running the coalitionper se or to other states participating in the coalition, that state should not be classified as an OccupyingPower, since it has relinquished the effective or overall control over the troops it has put at the coalition’sdisposal.85 Knut Dörmann and Laurent Colassis, ‘IHL in the Iraq conflict’,inGerman Yearbook of International Law,Vol. 47, 2004, pp. 302 ff.86 Adam Roberts, ‘The end of occupation in Iraq’,inInternational and Comparative Law Quarterly, Vol. 54,June 2005, p. 33. See also Liesbeth Lijnzaad, ‘How not to be an Occupying Power: some reflections on UNSecurity Council Resolution 1483 and the contemporary law of occupation’, in Liesbeth Lijnzaad,Johanna van Sambeek, and Bahia Tahzib-Lie (eds), Making the Voice of Humanity Heard, MartinusNijhoff, Leiden, 2004, p. 298 : ‘carrying out tasks under command or instruction of an Occupying Powertends to confer Occupying Power status on those cooperating with them, particularly when such tasks are161