The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (review)

Abstract

Reviewed by: The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law Noam Lubell (bio) Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Leiden, Brill, 2009), 760 pages ISBN 978 90 04 16246 4. The first line of the preface informs the reader that this book is the result of over six years of research and, indeed, the wealth of information and wide scope of material analyzed most certainly reflect a significant endeavor. Essentially, Yutaka Arai-Takahashi has written the most comprehensive analysis of the law of occupation in recent times. While also providing a historical overview on the development of the laws, the book raises many of the modern dilemmas in the law of occupation, such as the role of the United Nations Security Council in what are sometimes known as “transformative occupations.” In addition to the chapters devoted directly to law of occupation, the book also includes substantive chapters on areas which, while directly tied into matters within the realm of the law of occupation under international humanitarian law, go beyond this sphere. This can be seen in the chapters on the extraterritorial applicability of international human rights law, and the relationship between the latter and international humanitarian law. This welcome approach incorporates and engages in a comprehensive manner with a range of issues that must be addressed in order [End Page 249] to grasp the complexities and current debates occurring in relation to the international laws applicable to situations of occupation. The book covers extensive ground in the area of international human rights law and its rules, for many of which there is widespread—though perhaps not unanimous—support for being applicable to situations of occupation. The law of occupation is an area rife with disagreement and varying interpretations exist on a multitude of issues, which becomes apparent in the first chapter of the book. The opening chapter covers the scope of application of the law of occupation, and deals with topics, such as control of territory, the commencement and termination of occupation, and the different categories of occupation, amongst other topics. The chapter’s section on effective control presents an approach where the criterion required by Article 42 of the Hague Regulations should not be applied in an overly restrictive manner. This widely held approach is in need of reflection when contrasted with the notion of effective control in the context of determining applicability of international human rights law obligations to occupied territory, and this difficulty is recognised in the discussion toward the end of Chapter 21 of the book. The need for such a contrast is highlighted by cases, such as five of the six applicants in the UK Al-Skeini case, which might be read as endorsing an approach according to which there may be a situation of occupation—thereby accepting the effective control test for occupation is met—in which the effective control threshold for applying human rights law is not reached in relation to certain circumstances. If the two notions of effective control are to provide results that are not disparate, there may be need to accept a wider approach to the applicability of international human rights law than that currently reflected in the practice of certain occupying states. Even greater disagreements have surfaced in recent years regarding the termination of occupation, specifically the Gaza Strip. The book notes the possibility that occupation comes to an end following a withdrawal. Arai-Takahashi engages in an informative analysis of the circumstances in which an occupation may (or may not) have ended when a newly elected government assumes control and consents to troops remaining in its territory, using Iraq and Afghanistan as prime examples. Presently, there is a heated debate over whether or not Gaza should be considered an occupied territory. Many of the current positions held in the debate seem to stem from a policy oriented starting point which then leads to partial reliance on the law. Those who prefer to declare the occupation over rest their argument on the withdrawal of permanent troops and settlers from the area, and...