The Righting of the Law of Occupation

Abstract

Two doctrinal developments were necessary preconditions for the application of international human rights law (IHRL) in occupied territories to become part of international law. The first development was the growing recognition of the extraterritorial application of human rights—the idea that states are also bound by international human rights norms in actions they perform outside their borders— and the second was the determination that IHRL may apply together with international humanitarian law (IHL). The application of human rights in occupied territories is the outcome, possibly the most important, of these two developments. Given that occupation is one of the broadest manifestations of state control exercised outside sovereign borders, and one traditionally conceived as being governed by IHL rather than by IHRL, and given the length and extent of the occupying powers’ control over foreign nationals, the development that I refer to as the ‘righting’ of the law of occupation may radically transform international law on the relationships between occupier and occupied. As this Article will show, such a transformation has been underway in recent years. Advocates for applying IHRL in occupied territories in addition to IHL suggest that doing so would advance the welfare of the occupied people as well as a legal culture of compliance. They point out that enforcement mechanisms, such as UN treaty bodies and human rights courts, that are lacking in IHL would constitute an advantage, potentially filling the enforcement gap. Some argue that ‘no conceptual difference’ prevails between these two bodies of law, at least as they stand today. Since both are designed to promote human dignity and physical integrity and to minimize human suffering, they maintain that these common goals could be advanced by this development. This Article, however, argues that the application of IHRL in occupied territories may in fact lead to a radical transformation in the law of occupation because of the conceptual differences that do exist between IHL and IHRL.