Occupation

Volume 94 Number 885 Spring 2012DEBATEIs the law ofoccupationapplicable to theinvasion phase?Marten Zwanenburg, Michael Bothe andMarco SassòliThe ‘debate’ section of the Review aims at contributing to the reflection on currentethical, legal, or practical controversies around humanitarian issues.The definition of occupation under international humanitarian law (IHL) israther vague, and IHL instruments provide no clear standard for determining thebeginning of occupation. Derived from the wording of Article 42 of the 1907 HagueRegulations, occupation may be defined as the effective control of a foreign territory byhostile armed forces. It is not always easy to determine when an invasion has becomean occupation. This raises the question whether or not the law of occupation couldalready be applied during the invasion phase. In this regard, two main positionsare usually put forward in legal literature. Generally it is held that the provisionsof occupation law only apply once the elements underpinning the definition setout in Article 42 of the 1907 Hague Regulations are met. However, the so-called‘Pictet theory’, as formulated by Jean S. Pictet in the ICRC’s Commentary on theGeneva Conventions, proposes that no intermediate phase between invasion andoccupation exists and that certain provisions of occupation law already apply duringan invasion.The collapse of essential public facilities such as hospitals and water-supplyinstallations, partly due to the large-scale looting and violence that came alongwith the progress of the coalition forces, in Iraq in 2003 demonstrates that thisdiscussion is not simply a theoretical one. Invading armed forces need clarity as towhat rules they need to apply.Three experts in the field of occupation law – Marten Zwanenburg, MichaelBothe, and Marco Sassòli – have agreed to participate in this debate and to defendthree approaches. Marten Zwanenburg maintains that for determining when aninvasion turns into an occupation the only test is the one set out in Article 42 of thedoi:10.1017/S1816383112000537 29