Occupation

Volume 94 Number 885 Spring 2012discretion. 34 The proposal was opposed by the Soviets, as well as several Westernstates, and was not adopted. 35 Instead, Article 64 of the Convention reiterated theconservationist principle, though the rights-enhancing provisions elsewhere in theConvention effectively abrogated it for their specific purposes. The secondcodification was Additional Protocol I of 1977, which addressed a series ofoccupation law issues. None of its provisions purported to modify the conservationistprinciple.Third, the arguments used in the late 1940s to justify the post-World War IIoccupations have not aged well. Post-World War II Allied lawyers faced a dauntingtask in justifying de-Nazification in Germany and Austria and the new constitutionfor Japan drafted by General MacArthur. All appeared blatantly inconsistent withHague law, a conclusion they strove mightily to avoid. The justifications that theselawyers devised, while clever and even plausible at the time, are hardly replicabletoday. 36 Most relied on debellatio and related principles appurtenant to the right ofconquest. 37 In a widely cited article, for example, Robert Jennings argued that,because the victorious allies could have annexed Germany, they were also ‘entitled toassume the rights of supreme authority unaccompanied by annexation; for the rightsassumed by the Allies are coextensive with the rights comprised in annexation’. 38These doctrines find scant support in contemporary international law, as they arewholly incompatible with the UN Charter’s limitation on the aggressive use of forceand affirmation of the sovereign equality of states. As a result, the post-World War IIclaims have dropped out of scholarly discussion and official justifications of statepolicy, which focus instead on the human rights-centred justifications examinedhere. 39 None of the post-World War II justifications are repeated in any of the nowvoluminous writings on transformative occupation. In short, the post-World War II34 The US proposal would have replaced the then draft Article 55 with the following language: ‘Untilchanged by the Occupying Power the penal laws of the occupied territory shall remain in force and thetribunals thereof shall continue to function in respect of all offenses covered by the said laws’. See YutakaArai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, andits Interaction with International Human Rights Law, Martinus Nijhoff Publishers, Leiden and Boston,2009, p. 118. The Soviet delegate objected that the US approach would grant occupying powers ‘anabsolute right to modify the penal legislation of the occupied territory’ and would ‘greatly exceed thelimited right laid down in the Hague Regulations’ (quoted in ibid.).35 Ibid. (noting opposition of the Soviet Union, Norway, Romania, and Mexico).36 G. H. Fox, above note 2, pp. 289–294.37 Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge University Press,Cambridge, 2009, p. 32.38 The passage reads in full: ‘If, after the German surrender, the Allies had indeed annexed the German statethere could have been no doubt about the nature of their right in law to do so; the circumstances wouldhave fitted neatly and unquestionably into the familiar category of subjugation. But if as a result ofthe Allied victory and the German unconditional surrender Germany was so completely at the disposal ofthe Allies as to justify them in law in annexing the German state, it would seem to follow that they areby the same token entitled to assume the rights of supreme authority unaccompanied by annexation; forthe rights assumed by the Allies are coextensive with the rights comprised in annexation, the differencebeing only in the mode, purpose, and duration of their exercise, the declared purpose of the occupyingPowers being to govern the territory not as an integral part of their own territories but in the name of acontinuing German state’. Robert Y. Jennings, ‘Government in commission’, inBritish Year Book ofInternational Law, Vol. 23, 1946, p. 137.39 Jennings’s article, for example, was cited in in the 1958 edition of the British Military Manual but wasdropped from the 2004 revised edition. See British Command of the Army Council, Manual of Military247