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A Novel Rationale to the Classification of Hostilities between Occupying Powers and Non-State Armed Groups

July 23, 2019

Marco Longobardo is a Lecturer in International Law at the University of Westminster, where he also teaches public international law, international humanitarian law, international criminal law and other related subjects. He undertook his doctoral studies at the Sapienza University of Rome and previously lectured at the University of Messina and in the context of international humanitarian law courses for the personnel of the Italian armed forces. He has published extensively on public international law issues and he is the author of The Use of Armed Force in Occupied Territory (CUP 2018).

Introduction

Based on the research conducted for my book on The Use of Armed Force in Occupied Territory (CUP 2018), this blog post addresses the contentious issue of the classification of hostilities in occupied territory, focusing on the rules applicable to the hostilities between the occupying power and non-state armed groups. This brief analysis does not explore the main legal framework governing the use of armed force in occupied territory, that is, a law enforcement scheme, but rather, it focuses only on the rules on the conduct of the hostilities (on the relationship between law and enforcement and conduct of hostilities in occupied territory, see my book, pp. 229-238). It is argued here that the rules on conduct of hostilities that are applicable in international armed conflicts (IACs) govern the occupying power’s use of armed force in occupied territory when hostilities occur. After a brief overview of state practice and judicial precedents, this piece will offer a novel argument in support of this conclusion.

International Practice and Relevant Case Law

The first argument in favour of the application of rules on IAC finds its grounds in state practice and case law.

For instance, the International Court of Justice supported this view in the 2004 Wall opinion, when it discussed the applicability of Article 23(g) of the 1907 Hague Regulations (HR), which governs the conduct of hostilities in international armed conflict (2004 Wall opinion, para. 124). Similarly, in the2005 Armed Activities in DRC case, the same Court applied the rules on international armed conflict to hostilities against non-state actors that occurred in the occupied province of Ituri. The reports of some commissions of inquiry dispatched by the Human Rights Council (such as the Goldstone Report, para. 77, and the 2010 Mavi Marmara Report, paras. 62-66) suggest the same, as well as the Office of the Prosecutor of the International Criminal Court (ICC)’s 2016 Report on Preliminary Examination Activities, para. 158 (with reference to Crimea). A recent contrary view may be found in the 2019 Ntaganda decision of the ICC (which was endorsed by one recent commentary).

As a matter of state practice, occupying powers and states opposing the occupation alike share this view. For instance, the Supreme Court of Israel affirmed that the rules on IAC must be applied in a number of cases such as the 2005 Targeted Killings case (para 18) and in the 2018 Gaza Demonstrations case (para. 38). Additionally, a number of other states also supported this view when they urged Israel to respect the law on international armed conflict during military operations in the Gaza Strip (see the statements collected in my book, pp. 218-9, fn 295).

However, states are reluctant to offer legal arguments to explain their statements. Moreover, neither national nor international courts have offered significant insights on why the law on international armed conflict should be applied. Accordingly, this is the purpose of this post.

The Application of Rules on IAC as a Consequence of the Occupation Itself

The application of IAC rules is a consequence of the fact that an occupation may be created only in a situation of IAC and is regulated by the same branch of jus in bello. According to the Israeli report investigating the boarding of the vessel Mavi Marmara in 2010 (para 41), ‘[s]ince an occupation can only exist within the context of an international armed conflict, the position that the Gaza Strip is subject to an occupation necessarily leads to the conclusion that the conflict in the Gaza Strip is international in character.’ Indeed, when an occupation is established, the usual rules governing the classification of armed conflicts do not apply to the actions of the occupying power. From this perspective, the law of occupation is a lex specialis in relation to other rules of international humanitarian law not specifically dealing with situations of occupation.

One of the basic tenets of the law of occupation is that the occupying power is prevented from acquiring sovereignty over the occupied territory, but rather, it has to distinguish itself from the true sovereign of that territory (see Articles 43 and 55 of the HR and Article 4 of the API). Accordingly, every time the occupying power is required to act in the place of the ousted sovereign, the law of occupation provides for a specific enabling norm, Article 43 of the HR being the most important.

The law of occupation is incompatible with the rationale behind rules on NIAC. In cases of NIACs, territorial states have the right to punish (jus puniendi) the insurgents. This right derives from state sovereignty. In the past, only acts of sovereign entities could be seen as legitimate acts of war; accordingly, no international status was recognised to non-state actors fighting against their sovereign – except, of course, in cases of recognition of belligerency. Still today, when a state’s conduct in NIACs is constrained by a number of international law rules, international humanitarian law acknowledges the prerogative of states, ‘by all legitimate means, to maintain or re-establish law and order’, which could include the punishment of individuals involved in a NIAC against themselves (see Article 3(1) of the 1977 Second Additional Protocol (APII)). This jus puniendi is not created by international law, but rather, is based on the pact of allegiance between the sovereign and its population pursuant to domestic legislation. International law merely acknowledges the existence of a similar prerogative and, with the exception of situations of recognition of belligerency or legitimate struggles under Article 1(4) of the 1977 First Additional Protocol, requires other states to abstain from any interference with this internal matter (Article 3(2) of the APII).

Conversely, the occupying power does not enjoy such an inherent jus puniendi in occupied territory but it is the international law of occupation that grants it. The lack of occupying power’s sovereignty over the inhabitants of the occupied territory results in a lack of any domestic jus puniendi over the local population. This is particularly relevant in light of the absence, upon the local population, of any duty of obedience or allegiance to the occupying power (as demonstrated in Section.4.2.b of my book). To fill the absence of a sovereign jus puniendi upon the occupying power, the law of occupation has to bestow upon the occupying power an additional source of punitive powers, through the rules codified in Article 43 of the HR and Article 64 of the 1949 Fourth Geneva Convention, which allow the occupying power to criminalise and punish acts of resistance. In particular, Article 64 of the 1949 Fourth Geneva Convention refers to the adoption of provisions ‘which are essential to … to maintain the orderly government of the territory, and to ensure the security of the occupying power, of the members and property of the occupying forces or administration’; this provision has been interpreted by occupying powers as enabling them to adopt legislation that criminalises the conduct of hostilities against themselves. This source of jus puniendi is international in character and it is not a consequence of the territorial sovereignty of a state; rather, absent these provisions, the occupying power would be prevented from criminalising the activities of the resistance.

But why did the drafters of the law of occupation decide to adopt specific rules allowing the occupying power to exercise jus puniendi? Indeed, should they have considered hostilities in occupied territory to be non-international in character, there would have been no need to provide for this additional source of jus puniendi since states’ right to criminalise acts of resistance would have been inherent in cases of NIACs. Arguably, the only way to understand the necessity of such explicit provisions regarding the occupying power’s jus puniendi is to acknowledge that the drafters of the 1949 Geneva Conventions believed that situations of occupation were ontologically different from non-international armed conflicts. Indeed, if the drafters would have thought that similar hostilities were regulated by NIACs rules, these armed confrontations would have been subject to such jus puniendi even in the absence of explicit international law provisions. Consequently, the need for such clauses enabling the occupying power to punish acts against its own security suggests that hostilities in the occupied territory, irrespective of the nature of the actors involved, are regulated by IACs rules.

The counterargument that states did provide for such additional sources of the occupying power’s jus puniendi by merely neglecting to envisage hostilities not involving the ousted sovereign is fallacious for historical reasons. In fact, the drafters of the 1949 Geneva Conventions clearly had in mind the possibility of hostilities within the occupied territory involving non-state actors not affiliated with the occupied state, thanks to the experience of WWII.

Nor is it reasonable to assume that all the individuals fighting against the occupying power belong to the ousted sovereign. Simply, there is no basis for this view in customary international law, which relies on the notion of overall control to characterise an armed conflict (see the discussion in my book, pp. 205-214). Moreover, considering all individuals fighting against the occupying power as to belonging to the occupied state would not resolve the issue of hostilities in occupied territories not belonging to any state.

In conclusion, the need for explicit provisions enabling the occupying power to punish acts against its own security is at odds with the theoretical premises of the law on non-international armed conflict, according to which the territorial state has the prerogative to punish those acts without needing any international law permission to do so. Accordingly, the presence of such clauses in the law of occupation demonstrates that the drafters of the 1949 Four Geneva Convention did consider hostilities occurring in the occupied territory to be regulated by the law on international armed conflict as long as hostilities involve the occupying power.

Pros and Cons of the Proposed Approach

The suggested approach has the benefit of offering a practical solution to the occupying power: rather than distinguishing between hostilities against the ousted sovereign (IAC), hostilities against armed groups not belonging to the ousted sovereign but to which Article 1(4) of the 1977 First Additional Protocol is applicable (IAC), and hostilities against armed groups not affiliated to the ousted sovereign (NIAC), the occupying power would apply the same legal framework to all of the aforementioned scenarios. As explained by Watkin, p. 292, this was the operational decision undertaken by occupying powers in Iraq in relation to hostilities involving many different actors. Moreover, the proposed approach is in line with the fundamental tenet of the law of occupation according to which an occupation does not establish any sovereignty over the occupied territory.

However, the proposed approach has a significant disadvantage: it is only fit to regulate the conduct of the occupying power but it does not address the conduct of the concerned armed groups. One could wonder whether this means that armed groups must respect the law of IACs as well, and what the implications of this outside the conduct of hostilities might be. Is the consequence of the proposed approach that armed groups fighting against the occupying power may claim all the duties and rights under IACs rules? For instance, one could wonder whether the armed groups should treat captured enemies belonging to the occupying power as prisoners of war, as suggested by the Goldstone Report, para. 77. Indeed, the proposed approach should be limited only to the rules on the conduct of hostilities, a field in which rules on IAC and NIAC are converging, as recognized by UN practice in relation to the use of armed force in occupied territory (see, e.g., the recent 2019 Report of the Commission of Inquiry on the Protests in the Occupied Palestinian Territory, para. 69; however, some differences between rules on NIAC and on IAC, even in relation to the conduct of hostilities, should be noted, as recently suggested). Anyway, it is undeniable that the law of occupation is only concerned with the conduct of the occupying power and that this may create an imbalance. As put by Akande, p. 47, ‘the relevant question is not what type of conflict exists between the state and the non-state group but what law applies to the acts of an occupying power within occupied territory.’ 

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