Occupation

V. Koutroulis – The application of international humanitarian law and international human rights law insituations of prolonged occupation: only a matter of time?it is linked to a single precedent and that it comes from the domestic courts of onestate imposes prudence in its analysis. 33With these considerations in mind, we will now turn to the impact exercisedby time on the application of IHL rules to situations of belligerent occupation.Prolonged occupations and international humanitarian lawIt will first be shown that the protracted duration of an occupation cannot beinvoked as a legal basis for excluding altogether the application of any IHL rule. Itcan, however, influence the way in which some IHL rules apply to such occupations.International humanitarian law applies in its entirety to prolongedoccupationsAs was indicated in the previous part, our position is that all IHL rules pertainingto situations of belligerent occupation remain applicable until the end of theoccupation. 34 The rules pertaining to occupation laid down in the HagueRegulations do not contain any article determining their end of application. 35 Thetravaux préparatoires of the Hague Regulations confirm that the scope ofapplication ratione temporis of these rules is aligned to their scope of applicationratione materiae. In other words, the rules continue to apply as long as a belligerentoccupation in the sense of Article 42 of the Hague Regulations exists. 36 This hasbeen confirmed by the ICJ in its DRC v. Uganda judgment. 37 Things are morecomplex with the application of the Fourth Geneva Convention, whose Article 6,paragraph 3 reads as follows:In case of occupied territory, the application of the present Convention shallcease one year after the general close of military operations; however, theOccupying Power shall be bound, for the duration of the occupation, to theextent that such Power exercises the functions of government in such territory,33 See, e.g., Eyal Benvenisti, ‘Judicial misgivings regarding the application of international law: an analysis ofattitudes of national courts’, inEuropean Journal of International Law, Vol. 4, No. 1, 1993, pp. 160 ff.Along the same lines, Tristan Ferraro argues that: ‘enforcement of occupation law by domesticcourts ...does not seem to actually provide for an adequate system of implementing control and review ofoccupants’ measures’: T. Ferraro, above note 32, p. 337. Finally, according to Guy Harpaz and YuvalShany, ‘The jurisprudence of the Supreme Court during all these years may be seen as an exercise injudicial acrobatics, simultaneously regulating and legitimizing the occupation’: Guy Harpaz and YuvalShany, ‘The Israeli Supreme Court and the incremental expansion of the scope of discretion underbelligerent occupation law’, inIsrael Law Review, Vol. 43, 2010, p. 515.34 See also ICJ, Wall advisory opinion, above note 10, Separate Opinion Judge Elaraby, p. 255; V. Koutroulis,above note 3, pp. 274–276; Christopher Greenwood, ‘The administration of occupied territory ininternational law’, in Emma Playfair (ed.), International Law and the Administration of OccupiedTerritories, Clarendon Press, Oxford, 1992, p. 263.35 Hague Regulations, articles 42–56.36 V. Koutroulis, above note 3, pp. 156–157.37 ICJ, DRC v. Uganda, Judgment, above note 19, pp. 228, 231, and 254–255, paras. 167, 178–179, and 254.The Court considered that Uganda was responsible for violations of IHL (including the HagueRegulations) until 2 June 2003, the date of the final withdrawal of the Ugandan forces from DRC territory.172