Article 43 of the Hague Regulations of 1907 Revisited: The Past and the Future of Belligerent Occupation in International Law

Abstract

From the mid-eighteenth century, international law gradually shifted away from the right of conquest to a right of provisional and conservationist administration by a belligerent, of enemy territory under the effective control of its army. The legal regime governing this belligerent right of military occupation was formally codified by the 1899 and 1907 Hague Peace Conferences. However, even at the beginning of the twentieth century, strict adherence by occupying powers of the rules governing belligerent occupation was notoriously lacking, a situation which grew increasingly worse. This necessitated a revision of the Hague Regulations by the 1949 Geneva Convention IV, principally, to enhance the protection of the civilian population in occupied territories. Although the right of conquest was by now clearly unlawful, State practice regarding occupations was far from strict in conformity with the conservationist regime of the Hague Regulations which for some time appeared to have fallen into desuetude — that is, until the beginning of the twenty-first century with the United States/United Kingdom occupation of Iraq. However, the avowed nation-building and regime-change purposes of this occupation cast doubt on whether the Hague Regulations, in particular article 43, were recoverable in pristine form. This paper examines aspects of the ensuing debate from the perspective of the function of the law of belligerent occupation, clarifies conceptual and doctrinal misconceptions, and concludes that no alternative regime that will serve the function well has been put forth.