Occupation

Volume 94 Number 885 Spring 2012with both sets of rules. Article 51, paragraph 2 of the Fourth Geneva Convention isclearly not violated. However, given that the situation under consideration does notseem to fall under any of the exceptions provided for by Article 8, paragraph 3 of theICCPR, the actions in question violate the Covenant. 185 This is a case where theapplication of the principle of lex specialis could be of use. Indeed, unless weconsider that Article 51, paragraph 2 of the Fourth Geneva Convention has beenabolished by the IHRL prohibition of forced labour, 186 the content of the two rules iscontradictory. Therefore, Article 51, paragraph 2 of the Convention will supersedeArticle 8, paragraph 3 of the ICCPR as lex specialis.Consider now that the occupation has lasted for many years or decades andthe Occupying Power continues to compel protected persons to work for the needsof the occupying army or the local population. As was explained above, theformulation of the reasons for compelling protected persons to work is such that itcan remain valid throughout a long-term occupation. 187 In other words, even if anoccupation lasts for forty years, the occupying army will still have maintenanceneeds and the local population will still need feeding and sheltering. Does this meanthat the Occupying Power will be able to continue this practice without violatingeither Article 51 of the Fourth Geneva Convention or Article 8, paragraph 3 of theICCPR, thanks to the lex specialis rule? Such an interpretation would lead to theabsurd result of allowing an Occupying Power to support its army, at least in part,by exploiting the local population for long periods of time. It is submitted that, inthis case, the prolonged character of the occupation breaks the lex specialis bondbetween the two relevant provisions, restoring their parallel application. Thus, theOccupying Power’s actions may still be in conformity with IHL, but they willconstitute a violation of the ICCPR. This example illustrates the reinforcinginfluence that the duration of an occupation has on the weight attributed to IHRLrules.That being said, one final remark is in order. One cannot generally affirmthe reinforcement of IHRL in prolonged occupation without taking into account thepeaceful character or not of the occupation in question. The long duration of theoccupation will raise the impact of human rights rules only in situations not relatedto the existence of hostilities inside the occupied territory. For example, in the caseof inhabitants of the occupied territory taking part in a protest against austeritymeasures adopted by the Occupying Power in the context of its exercise ofadministrative functions of the territory, the Occupying Power may not invokeimperative reasons of security for taking safety measures or requiring thoseinhabitants to live in assigned residence. 188 It can, however, adopt such measures185 This presupposes that the Occupying Power in question has not invoked Article 4 of the ICCPR in orderto derogate from GV IV, Art. 8, para. 3: see ICCPR, Art. 4, para. 2.186 Which does not seem to be the case, since states continue to acknowledge the power of the occupier tocompel members of the occupied population to work: see the military manuals referred to in relation toRule 95 of the ICRC study on customary IHL, available at: http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule95 (last visited 5 July 2012).187 See above note 157 and accompanying text.188 GC IV, Art. 78.199