The Law of Occupation

Continuity and Change of International

Humanitarian Law, and its Interaction with

International Human Rights Law

By

Yutaka Arai-Takahashi

Arts & HumanitiesResearch Council

M A R T I N U S

NITHOFFP U B L I S H E R S

LEIDEN • BOSTON2009

Contents

Preface xxviiThe List of Abbreviations xxxiProlegomenon xxxix

PARTI

THE GENERAL PRINCIPLES OF THELAW OF OCCUPATION

Chapter 1: The Scope of Application of the Law of Occupation 31. Introduction 32. The Meaning of Occupation and the Scope of Application

Ratione Materiae of the Law of Occupation 52.1. Overview 52.2. Effective Control 62.3. Control of a Territory Beyond the Territorial Boundaries of

the Occupying Power 82.4. Irrelevance of "Official" Proclamation by de facto Occupying

Powers 103. The Scope of Application Ratione Personae of the Law of

Occupation 124. The Scope of Application Ratione Temporis of the Law of

Occupation 164.1. The Commencement of Occupation 164.2. The Termination of Occupation 164.3. Criteria for Assessing the End of Occupation: Effective

Handover and Elections 195. The Rules Concerning Postliminium 246. Different Categories of Occupation 26

6.1. Overview 266.2. Post-Armistice Occupation 276.3. The "Mixed Occupation" (Miscbbesetzung) 286.4. Post-Surrender Occupation 30

vi Contents

6.5. Post-Debellatio Occupation (Occupation based onDebellatio) 37

6.6. Pacific Occupation {Occupatio Pacified) 407. Basic Rules on the Law of Belligerent Occupation 42

7.1. The Transitional Nature of Occupation 427.2. Oath of Obedience, and not Oath of Allegiance 437.3. The Interdiction of Annexation 44

8. The Exclusion of Applicability of the Law of Occupation? 468.1. Overview 468.2. The Relationship between the Legality in Jus ad Bellum and

the Applicability of the Law of Occupation 468.3. A Brief Examination of the "Missing Reversioner" Theory ... 47

9. Conclusion 52

Chapter 2: Sources of the Law of Occupation 551. Introduction 552. Treaty Law 553. Customary International Humanitarian Law 574. The Fourth Geneva Convention as Customary International

Law 595. General Principles of International Law 65

5.1. Overview 655.2. The Principle of Self-Determination 655.3. General Principles of International Humanitarian Law and

the Martens Clause 686. Security Council Resolutions Adopted under Chapter VII of the

UN Charter 726.1. Overview 726.2. Derogability of Security Council Resolutions from the Law

of Occupation 726.3. Can the Security Council Acting under Chapter VII of the

UN Charter Override Obligations under IHL andInternational Human Rights Law? 79

6.4. Security Council Resolutions Must Abide by Jus Cogens 826.5. The Relationship between Security Council Resolution 1483

and the Law of Occupation 857. Conclusion 89

Chapter 3: The Legislative Competence of the Occupying Powerunder Article 43 of the 1907 Hague Regulations 911. The Scope of Legislative Power under Article 43 of the 1907

Hague Regulations 91

Contents vii

2. The Origin of Article 43 of the 1907 Hague Regulations -Articles 2 and 3 of the Brussels Declaration of 1874 93

3. The Meaning of the Expression "vie publique" 964. The Meaning of the Words "les lois en viguer" 975. The Obligation to Restore and Ensure Public Order and Civil

Life 985.1. The Nature of Obligations 985.2. The Obligations Relating to Public Order 985.3. The Obligation to Ensure Public Order and Civil Life 99

6. Laws Enacted by "Absent" Sovereign 1017. Exceptions to Article 43 of the 1907 Hague Regulations 102

7.1. "Empechement absolu" 1027.2. Welfare of the Population 106

8. State Practice in Relation to Article 43 of the 1907 HagueRegulations during the Two World Wars 107

9. Abrogation of Fascist Laws under the Necessity Test 10910. Waiver of Article 43 of the 1907 Hague Regulations by a

Subsequent Agreement? I l l11. Conclusion 113

Chapter 4: The Legislative Competence of the Occupying Power underthe Fourth Geneva Convention 115

1. Introduction 1152. Article 64 of GCIV and the Necessity Exceptions 116

2.1. Article 64 of GCIV 1162.2. Drafting Records of Article 64 of GCIV 117

3. The Scope of Legislative Power of the Occupant underArticle 64 of GCIV 1203.1. Three Elements of Incoherence 1203.2. The Relationship between Article 43 of the 1907 Hague

Regulations and Article 64 of GCIV 1204. Three Elements of Necessity under Article 64 of GCIV 123

4.1. Overview 1234.2. The Necessity Test Based on Security Grounds 1244.3. The Necessity of Maintaining Public Order and Civil

Life 1284.4. The Necessity of Fulfilling the Obligations under the

Geneva Conventions 1324.5. The Necessity of Fulfilling Obligations under International

Human Rights Law? 1355. Conclusion 136

viii Contents

Chapter 5: The Administrative and Judicial Structures in OccupiedTerritory 1371. Introduction 1372. The Administrative Structures in Occupied Territory 137

2.1. Overview 1372.2. Three Basic Principles 1382.3. The Remoulding of Administrative Structures in Occupied

Territory: Exceptions to the Three Basic Rules 1402.4. Introduction of Democratic Governance 1422.5. Alterations in Boundaries of Occupied Territories 1422.6. The Prohibition of Coercion or Discrimination against

Public Officials or Judges in Occupied Territory 1432.7. Removal of Public Officials and the Necessity Test 1442.8. Local Government 144

3. Judicial Structures in Occupied Territory 1453.1. Administration of Justice 1453.2. The Personal Scope of Jurisdiction in Occupied Territory .... 1463.3. Judicial Review of Ultra Vires Acts of the Occupant? 147

4. Occupation Courts 1574.1. Overview 1574.2. Occupation Courts under GCIV 1624.3. Occupation Courts and War Crimes 164

5. Conclusion 166

Chapter 6: Regulations of the Economy in Occupied Territory 1671. Introduction: The General Principle of Good Administration of

the Economy 1672. Investments in Occupied Territory 1693. Public Finance 171

3.1. Taxes 1713.2. "Other Money Contributions" 1733.3. Permissibility of Introducing New Taxes 1753.4. Immunity of Occupation Authorities from Local Tax 181

4. Conclusion 182

Chapter 7: The Prohibition of the Destruction of Enemy Property inOccupied Territory 1831. Introduction 1832. A Scorched Earth Policy 1843. Destruction of Property and the Military Necessity Test 1864. Extensive Destruction and Appropriation of Property as a Grave

Breach of GCIV 1915. Conclusion 192

Contents ix

Chapter 8: The Prohibition of the Seizure and Use of PublicProperty in Occupied Territory 1951. Introduction: The Distinction between Private and Public

Property 1952. State Property 196

2.1. Overview 1962.2. Immovable State Property (Land and Buildings) of a Civilian

Character 1962.3. Immovable State Property (Land and Buildings) of a Military

Nature 1982.4. Movable State Property 1992.5. Debt 201

3. Special Categories of Property 2053.1. Overview 2053.2. Property of Municipalities 2063.3. Civilian Hospitals 2063.4. Property of Civil Defence 2073.5. Property Permanently Assigned to Civil Defence

Organisations under Military Command 2084. Exploitation of Natural Resources 209

4.1. General Rules 2094.2. The Impact of the Principle of Self-Determination of

Peoples upon the Rules on Exploitation of NaturalResources in Occupied Territory 215

5. Conclusion 216

Chapter 9: Private Property in Occupied Territory 2171. Introduction 2172. The Prohibition of Pillage 2183. Temporary Use of Immovable Private Property 218

3.1. Overview 2183.2. Justification for Requisitioning Private Immovable Property

for Temporary Use: "Needs of the Army of Occupation"or "Imperative Military Necessity"? 222

4. Movable Private Property 2264.1. Four Categories of Private Movable Property 2264.2. Private Movables Essentially of a Non-Military Nature 2264.3. Appliances of Communication or Transportation, Depots of

Arms and Munitions de Guerre 2304.4. Submarine Cables Linking an Occupied Territory with a

Neutral Territory 2344.5. Works of Art and Science 234

x Contents

5. Expropriation 2366. Conclusion 238

Chapter 10: The Protection of Cultural Property in OccupiedTerritory 239

1. Introduction 2392. The Obligation to Assist, Preserve and Notify 2433. The Principle That All Seizure or Destruction of, or Wilful

Damage Done to, Institutions Dedicated to Religion, Charity,Education, the Arts and Sciences, Historic Monuments andWorks of Art and Science is Prohibited 245

4. The Obligation to Prohibit, Prevent and Stop any Form ofTheft, Pillage or Misappropriation of, and Any Acts ofVandalism Directed against, Cultural Property of GreatImportance to the Cultural Heritage of Every People 246

5. The Prohibition on Requisitioning Cultural Property inOccupied Territory 247

6. The Obligation to Prohibit and Prevent Illicit Export ofCultural Property from Occupied Territory 248

7. The Obligation to Return Cultural Property Exported fromOccupied Territory 249

8. The Obligation to Prohibit or Prevent ArchaeologicalExcavations in Occupied Territory 251

9. The Obligations to Prohibit or Prevent the Alterations to (or theChange of Use of) Cultural Property in Occupied Territory 253

10. The Prohibition of Reprisal against Cultural Property 25311. The Protection of Cultural Property in Occupied Territory and

War Crimes 25411.1. Overview 25411.2. General Remarks on the War Crimes Based on Seizure of,

Destruction of, or Wilful Damage Done to, CulturalProperty in General 255

11.3. War Crimes of Seizure of Cultural Property 25511.4. War Crimes Based on Extensive Destruction and

Appropriation of Cultural Property in OccupiedTerritory 256

11.5. Criminalisation under the 1999 Second HagueProtocol 256

12. Conclusion 257

Contents xi

PART II

IHL-BASED RULES CONCERNING FUNDAMENTALGUARANTEES FOR INDIVIDUAL PERSONS IN

OCCUPIED TERRITORIES

Chapter 11: General Principles Governing the Protection ofFundamental Rights in International Humanitarian Law 2611. Introduction 2612. Conferral of Rights upon Individual Persons under IHL

Treaty-Based Rules 2623. General Principles of IHL Relating to the Protection of Rights

of Individual Persons 2643.1. Horizontal Effects — Positive Obligations 2643.2. State Responsibility for Violations of Rights of Civilians in

Occupied Territory 2653.3. The Right of Individual Persons to Claim Reparations 265

4. The Fourth Geneva Convention and the Protection of Rights ofIndividual Persons 2684.1. Overview 2684.2. The Rights Guaranteed under Part III of GCIV 269

5. General Principles of the Fourth Geneva Convention Relating tothe Protection of Fundamental Rights 2705.1. Three "Minimum Core Guarantees" Recognised under

Article 27 of GCIV 2705.2. The Respect for Lives, Honour, Family Rights, Religious

Convictions and Practices, and Manners and Customs 2715.3. The Right to Equality and to Non-Discrimination 2725.4. The Inviolability of the Fundamental Guarantees of

Protected Persons in Occupied Territory 2735.5. Measures of Control and Security 275

6. Derogation under Article 5 of GCIV 2756.1. Overview 2756.2. Derogation from Rights of Protected Persons in Occupied

Territory 2766.3. Two Non-Derogable Rights Expressly Mentioned in

Article 5 of GCIV 2777. The Specific Elaborations of the Rights of Humane Treatment .... 278

7.1. General Remarks 2787.2. The Prohibition of Physical and Moral Coercion 2797.3. The Prohibition of Measures Causing Physical Suffering or

Extermination 2807.3.1. Overview 280

xii Contents

7.3.2. Drafting Records 2807.3.3. Ramifications 283

7.4. The Prohibition of "Measures of Intimidation or ofTerrorism" 284

7.5. The Prohibition of Belligerent Reprisals 2857.5.1. The Prohibition of Belligerent Reprisals against

Protected Persons Who Fall in the Hands of theAdversary 285

7.5.2. Belligerent Reprisals against Civilians of an AdverseParty During the Conduct of Hostilities 285

7.6. The Prohibition on Taking Individual Persons asHostages 2897.6.1. Overview 2897.6.2. Historical Evolution of the Prohibition on Taking

Hostages 2917.6.3. Criminalisation of Hostage-Taking since 1945 2937.6.4. The Scope of Application Ratione Personae of the

Victims of Hostage-Taking 2958. Conclusion 296

Chapter 12: Hostilities in Occupied Territory, Protected Persons, andParticipants in Hostilities 2971. The Threshold for Determining Hostilities in Occupied

Territory 2971.1. The Resumption of Hostilities or the Outbreak of New

Hostilities 2971.2. The Resumption of Hostilities in Occupied Territory 2991.3. Outbreak of Non-International Armed Conflict in Occupied

Territory 3001.4. Hostilities between the Occupying Power and the Armed

Groups Who Are Not Resistance Movements within theMeaning of Article 4A(2) ofGCIII 300

1.5. Cross-Border Hostilities between a State and Non-StateActors as Non-International Armed Conflicts 301

2. The Definition of Protected Persons and Civilians 3042.1. Protected Persons under Article 4 of GCIV 3042.2. Deprivation of Protected Persons Status? 3072.3. The Concept of Civilians under API 307

3. "Combatants" in Occupied Territories 3083.1. Members of Lawful Combatants of International Armed

Conflict in Occupied Territory 308

Contents xiii

3.2. Participants in Non-International Armed Conflict inOccupied Territory 3093.2.1. Three Categories of Individual Persons Affected by

Non-International Armed Conflict in OccupiedTerritory 309

3.2.2. Rebels and the "Revolving Door" Scenario 3103.2.3. The Distinction between Current and Former

Members of Armed Forces of the Occupied State 3113.2.4. Classification of Foreign Infiltrators as Unprivileged

Belligerents 3124. Unprivileged Belligerents in Occupied Territory 313

4.1. Overview 3134.2. Three Strands of Argument on the Scope of Protection of

GCIV in Relation to Unprivileged Belligerents 3145. The Concept of Direct Participation in Hostilities 319

5.1. Overview 3195.2. The Temporal Element "For Such Time" 3205.3. Direct Participation or Indirect Participation? 321

6. Conclusion 325

Chapter 13: Specifically Prohibited Acts in Occupied Territory 3271. Introduction 3272. Deportation or Forcible Transfer of Protected Persons 327

2.1. Overview 3272.2. The General Scope of Application Ratione Personae of

Article 49(1) of GCIV 3302.3. Deportation of Infiltrators of Foreign Nationality 3322.4. Controversy over the Customary Law Status of Article 49(1)

of GCIV 3332.5. The Collective or Individual Deportation? 3372.6. Forcible Transfer of Civilians within Occupied Territory 3392.7. The Question of Nationality and the Internal or External

Nature of Deportation/Transfer 3402.8. Unlawful Deportation or Transfer of Protected Persons as a

Grave Breach Form of War Crimes 3403. Evacuation 342

3.1. Overview 3423.2. Derogation from Article 49(1) of GCIV? 3433.3. Additional Requirements concerning Evacuation under

API 3444. Free Movement of Protected Persons 345

xiv Contents

5. Deportation or Transfer by the Occupying Power of Part of itsOwn Population into the Occupied Territory 3465.1. Overview 3465.2. Is Coercion an Element of Transfer of the Civilians of the

Occupant into Occupied Territory? 3475.3. The Distinction between Transfer pursuant to a Policy and

Voluntary Settlement? 3475.4. Indirect Measure of Transfer? 3495.5. Transfer by the Occupying Power of its own Population

into Occupied Territory as a War Crime 3506. Prohibition of Forced Labour 3507. Conclusion 353

Chapter 14: Economic, Social and Cultural Rights in OccupiedTerritory 3551. Introduction 3552. The Right to Adequate Working Conditions and the Prohibition

on Causing Unemployment 3563. Rights to Food and Medical Supplies, and Other Humanitarian

Relief Supplies 3563.1. Obligations to Furnish Humanitarian Relief Supplies 3563.2. Free Passage of Consignments 3573.3. Duties on Transit States to Allow Free Passage of Relief

Consignments 3594. The Requirement of Respecting and Protecting Humanitarian

Relief Personnel, Civil Defence Organisations, Medical Personnel,Civilian Hospitals and Medical Units 3604.1. Overview 3604.2. The Requirement of Respecting and Protecting

Humanitarian Relief Personnel 3604.3. The Duty to Respect and Protect Civil Defence

Organisations 3624.4. The Requirement of Respecting and Protecting Medical

Personnel 3634.5. The Requirement of Respecting and Protecting Civilian

Hospitals and Medical Units 3645. The Protection of Public Health and Hygiene 3656. The Prohibition on Requisitioning Relief Supplies, and

Immovable Property Belonging to Relief Societies etc 3656.1. The Prohibition on Requisitioning Relief Supplies 3656.2. Diversion of Relief Consignments? 3666.3. Requisition of Civilian Hospitals 367

Contents xv

6 A. Requisition of Shelters 3676.5. The Prohibition on Requisitioning, or Diverging from Their

Proper Use, Building or Materiel Belonging to, or Used by,Civil Defence Organisations 368

7. Rationales for Applying International Human Rights Law ofEconomic, Social and Cultural Nature in Occupied Territories .... 369

8. Derogation from Economic, Social and Cultural Rights 3719. Conclusion 373

Chapter 15: IHL-Based Rights of Women and Children inOccupied Territories 3751. Introduction 3752. IHL Treaty-Based Rights of Women in Occupied Territory 375

2.1. Overview 3752.2. General Safeguards of the Rights of Women under IHL 3762.3. The Rights of Women Derived from the Obligations to

Respect and Protect 3772.4. The Right of Women Deprived of Liberty to be Held in

Quarters Separate from Men 3782.5. The Responsibility of the Japanese Imperial Army for Sex

Slavery (so-called "Comfort Women") before and duringWorld War II 379

2.6. Fragility and Ineffectiveness of the Gendered Rubrics ofIHL 383

3. Rights of Children in Occupied Territory 3843.1. Overview 3843.2. Children's Right to Education in Occupied Territory 3853.3. The Right of Children Who are Deprived of Their Liberty

to be Held in Quarters Separate from Adults 3863.4. The Prohibition on Recruiting Children in Occupied

Territory 3873.5. Recruitment of Children as a War Crime 389

4. Conclusion 391

Chapter 16: Other Specific IHL-Based Rights of Individual Persons inOccupied Territory 3931. Introduction 3932. Respect for the Convictions and Religious Practices of

Civilians 3933. The Right to Apply to Protecting Powers and to the Red Cross

or to Other Humanitarian Organisations 3954. Conclusion 397

xvi Contents

PART III

CONVERGENCE AND INTERACTION BETWEENINTERNATIONAL HUMANITARIAN LAW AND

INTERNATIONAL HUMAN RIGHTS LAW

Chapter 17: The Relationship between International Human RightsLaw and International Humanitarian Law in Occupied Territories ... 401

1. The Applicability of Human Rights during Armed Conflict 4012. Fundamental Differences between International Human Rights

Law and IHL 4073. The Complementary Relationship between IHL and

International Human Rights Law 4084. The Threshold of Derogation Clauses under International

Human Rights Law and the Applicability of CommonArticle 3 411

5. Advantage of Relying on IHL Rules in Assessing InternationalHuman Rights Law 411

6. IHL as Lex Specialis 4146.1. Overview 4146.2. Brief Examinations of the Lex Specialis Rule 4156.3. Two Requirements of the Lex Specialis Rule 4166.4. Two Contexts in Which the Application of the Lex Specialis

Rule is Contemplated 4176.5. Limit of the Lex Specialis Rule 4186.6. The Lex Specialis Rule and the Interplay between IHL and

International Human Rights Law 4196.7. Circumstances in Which the Lex Specialis Rule Should be

Excluded to Allow the Application of International HumanRights Law 422

7. The Methodology of Applying IHL Rules by Human RightsTreaty Bodies 4257.1. Overview 4257.2. Direct Application of IHL by Human Rights Treaty

Bodies 4257.3. Indirect Application of IHL by Human Rights Treaty

Bodies 4298. The Methodology of Expanding the Scope of Application of

International Human Rights Law in Situations of Occupationand Armed Conflict 429

9. Kretzmer's Mixed Model 43010. Fundamental Differences in the Underlying Rationales of IHL

and International Human Rights Law Revisited 43311. Conclusion 435

Contents xvii

Chapter 18: The Effective Convergence between IHL andInternational Human Rights Law in Guaranteeing the Right toLife in Situations of "Volatile Occupation" 4391. Introduction 4392. Guidelines Derived from the Basic Principles on the Use of

Force and Firearms by Law Enforcement Officials 4413. Criteria for Assessing the Legality of Targeted Killing in

Occupied Territory 4424. Proportionality Assessment of the Right to Life in Situations of

Hostilities 4434.1. Modalities of Proportionality in Assessing the Right to Life

in the Context of International Human Rights Law 4434.2. The Approach of the European Court of Human Rights:

the Precautionary Principle as Part of Proportionality 4445. The Methodology of Incorporating Sub tests of Proportionality

Developed in the Context of International Human Rights Lawinto the Appraisal of Conduct of Hostilities 4465.1. Overview 4465.2. The Less Restrictive Alternative (LRA) Doctrine 4465.3. The Applicability or not of the LRA Subtest to the

Assessment of Conduct of Hostilities 4475.4. Proportionality Strict Sensu 448

6. Procedural Requirements for Targeted Killings 4506.1. Overview 4506.2. Ex ante Procedural Requirements 4506.3. Post Factum Procedural Requirements 4516.4. The Duty of Effective Inquiries into Circumstances of

Killing 4526.5. The Duty to Prosecute and Punish Responsible Soldiers and

Their Superiors 4537. Conclusion 455

Chapter 19: The Expanding Catalogue of Human Rights ofNon-Derogable Nature 4591. Introduction 4592. Article 4 of the ICCPR 460

2.1. Overview 4602.2. The Requirement of a Proclamation of a State of

Emergency 4612.3. The Requirement of Immediate Notification 4612.4. Existence of a State of Emergency 4622.5. Consistency with Other Obligations under International

Law 463

xviii Contents

2.6. The Prohibition of Discrimination 4642.7. The Principle of Proportionality 4652.8. The List of Non-Derogable Rights Expressly Provided

under Article 4 of the ICCPR 4663. General Comment No. 29 of the Human Rights Committee 466

3.1. Overview 4663.2. The Legal Basis for the Human Rights Committee to Issue

General Comment No. 29 4673.3. Normative Status of General Comment No. 29 468

4. The Expanded Catalogue of Non-Derogable Rights underGeneral Comment No. 29 4684.1. General Remarks 4684.2. The Right to Humane Treatment 4714.3. The Prohibition on Taking Hostages, Abductions or

Unacknowledged Detention 4734.3.1. Overview 4734.3.2. Abduction 473

4.4. The Rights of Persons Belonging to Minorities 4744.5. The Prohibition of Deportation or Forcible Transfer of

Populations 4764.6. The Prohibition of Propaganda for War and of Advocacy

of National, Racial, or Religious Hatred That WouldConstitute Incitement to Discrimination, Hostility orViolence 476

5. Other Non-Derogable Rights Identified by the Human RightsCommittee 4785.1. The Right to an Effective Remedy under Article 2(3)(a) of

the ICCPR 4785.2. Judicial Guarantees in Relation to Non-Derogable Rights .... 4795.3. Core Elements of Fair Trial Guarantees 480

6. Conclusion 481

Chapter 20: Procedural Safeguards and Fair Trial Guarantees inOccupied Territory 4831. Introduction 483

2. Assigned Residence and Internment/Administrative Detention .... 4832.1. The Legal Basis for Depriving Persons of Liberty in

Occupied Territory 4832.2. The Legal Basis for Procedural Safeguards of Persons

Deprived of Liberty in Occupied Territory 4852.3. The Limited Scope of the Procedural Safeguards for

Internees/Administrative Detainees 486

Contents xix

2.4. Procedural Safeguards for Persons Other than ProtectedPersons in Occupied Territory 487

2.5. The Analogous Application of Procedural Safeguards toPersons Captured in the UN-Administered Territory 488

3. General Principles Governing Internment/AdministrativeDetention of Individual Persons in Occupied Territory 4893.1. The Principle That Internment or Administrative Detention

Must be Carried out in Accordance with the Principle ofLegality 489

3.2. The Principle That Internment or Administrative Detentionis an Exceptional Measure 491

3.3. The Principle That Internment or Administrative DetentionMust Not be an Alternative to Criminal Proceedings 492

4. Procedural Safeguards That are Expressly Recognised in IHLTreaties 4944.1. Overview 4944.2. The Procedural Safeguards That are Largely Influenced by

International Human Rights Law 4944.2.1. The Right of Interned or Administratively Detained

Persons to be Informed Promptly, in a LanguageThey Understand, of the Reasons for suchDeprivation of Liberty 494

4.2.2. The Right to Contest Measures of Internment orAdministrative Detention 495

4.2.3. The Right to Periodic Review 4984.2.4. The Application of Judicial Review in Occupied

Territory 5004.2.5. The Right to Release with the Minimum Delay

Possible 5014.2.6. The Prohibition on Administrative Detention of

Indefinite Nature 5024.3. The Procedural Safeguards That Are Specific to IHL 504

4.3.1. Immunity from Arrest, Prosecution and Convictionfor Acts Committed, or for Opinions Expressed,before the Occupation 504

4.3.2. The Requirement That Persons Interned orAdministratively Detained Must be Registered andHeld in a Recognised Place of Internment orAdministrative Detention 504

5. Procedural Safeguards That Need to be Supplemented by thePractice of International Human Rights Law 5055.1. The Right to Legal Assistance 5055.2. The Right to Attend at the Process of Review 506

xx Contents

6. Fair Trial Guarantees of Accused Persons in Occupied Territory -the Interplay between IHL and International Human RightsLaw Disaggregated 5066.1. Overview 5066.2. The Legal Basis for Fair Trial Guarantees under IHL and

International Human Rights Law 5077. The Normative Status, and the Weight of Evidence, of the

Documents and Case-Law of International Human Rights Lawin Ascertaining Customary Norms concerning Fair TrialGuarantees 5107.1. The Structure of Analysis 5107.2. The First Step: the Identification of the Customary Law

Status of Fair Trial Guarantees Contained in IHL TreatyProvisions 5107.2.1. Overview 5107.2.2. The Customary Law Status of the Elements of the

Rights of the Accused That Are Safeguarded inArticle 75(4) API 511

7.2.3. Additional Elements of the Rights of the Accused,Which Can be Derived from Article 75(4) API, andthe Ascertainment of Corresponding CustomaryRules 512

7.3. The Second Step: Ascertaining the Non-Derogability ofCorresponding Rules Embodied under Human RightsTreaties 514

7.4. The Third Step: The Methodology of Recruiting SpecificElements and Principles from Documents and the Case-Lawof the Monitoring Bodies of Human Rights Treaties 5167.4.1. Overview 5167.4.2. The Normative Significance of the Case-Law of the

Monitoring Bodies of Human Rights Treaties inAscertaining Customary International Law 517

7.4.3. The Normative Significance of Documents of theMonitoring Bodies of Human Rights Treaties inAscertaining Customary International Law 519

7.4.4. Is it Possible to Read Additional Non-DerogableElements of Fair Trial Guarantees in the HumanRights Committee's General Comment No. 25>? 520

8. The Elements of the Rights of the Accused, Which areExpressly Contained in Article 75(4) API 5208.1. Fundamental Principles of Criminal Law 5208.2. The Right to be Presumed Innocent 521

Contents xxi

8.3. The Right to be Informed of the Nature and the Causeof Accusation 522

8.4. The Right to Trial by an Independent, Impartial andRegularly Constituted Court 5238.4.1. Overview 5238.4.2. Non-Derogability under the Practice of

International Human Rights Law 5248.4.3. The Role of International Human Rights Law in

Complementing Procedural Guarantees ofOccupation Courts 525

8.4.4. The Trial of Civilians by Military Courts 5268.4.5. The Trial of Unprivileged Belligerents in Occupied

Territory 5278.5. The Right of the Accused to be Present at the Trial 5298.6. The Right to Examine Witnesses or the Right to Have

Witnesses Examined 5308.7. The Right of the Accused Not to be Compelled to Testify

against Him/Herself and the Protection against CoercedConfessions 531

8.8. The Right of the Convicted Persons to be Informed ofAvailable Remedies and of their Time-Limits 532

8.9. Non bis in idem (Freedom from Double Jeopardy) 5328.10. The Right to Public Proceedings 534

9. The Elements of the Rights of the Accused, Which are Impliedfrom the General Terms under Article 75(4) API 5359.1. The Rights Relating to Means of Defence 535

9.1.1. Overview 5359.1.2. The Right to Defend Oneself or to be Assisted by

a Lawyer of One's Own Choice 5379.1.3. The Right to Free Legal Assistance 5389.1.4. The Right to Sufficient Time and Facilities to

Prepare the Defence 5399.1.5. The Right of the Accused to Communicate Freely

with Counsel 5409.1.6. The Right to the Assistance of an Interpreter or

Translator 5409.2. The Right to Trial without Undue Delay 5419.3. The Right to Remain Silent 5439.4. The Right of Convicted Persons to Appeal 543

10. Conclusion 545

xxii Contents

PART IV

EVOLVING ISSUES OF THE LAW OF OCCUPATION

Chapter 21: The Extraterritorial Application of International HumanRights Law in Occupied Territory 5511. Introduction: Extraterritorial Applicability of International

Human Rights Law in Occupied Territory 5512. The Meaning of the Term "within its territory and subject to its

jurisdiction" under Article 2(1) ICCPR 5532.1. Travaux Preparatoires of Article 2(1) ICCPR 5532.2. The Approach of the Human Rights Committee 5572.3. The Human Rights Committee and the "Subsequent

Practice" of States Parties 5593. The Meaning of the Term "within their jurisdiction" under

Article 1 ECHR 5593.1. Travaux Preparatoires of the ECHR 5593.2. The Approach of the European Court of Human Rights in

Relation to the Meaning of Jurisdiction under Article 1ECHR 560

4. Doctrinal Discourse on the Meaning of the Words "within itsterritory and subject to its jurisdiction" 562

5. The Circumstances in Which the Extraterritorial Application ofInternational Human Rights Law Can be Envisaged 5645.1. Overview 5645.2. Cases Where a State Exercises Control over a Territory of

Another State 5655.3. Bankovic and the Espace Juridique Doctrine 5695.4. Cases Where a State Exercises Control, Power or Authority

over Individual Persons 5725.5. Cases Where a State Exercises Control over the Infliction

of the Alleged Violation 5796. Conclusion 581

Chapter 22: The Applicability of the Law of Occupation to UNPeace Support Operations and UN Post-Conflict Administration 5831. Introduction 5832. The Applicability of Customary IHL to the UN Peacekeeping

Forces 5853. Can the UN Become Parties to IHL Treaties? 5874. The Practice of the United Nations and the UN Secretary-

General's Bulletin on Observance by United Nations Forces ofInternational Humanitarian Law 589

Contents xxiii

5. Other Indices for the Applicability of IHL Rules to UNForces 593

6. The Distinction between Enforcement Action andNon-Enforcement Action in Assessing the Applicability ofIHL 594

7. Consent as a Determining Factor? 5978. The Convention on the Safety of the United Nations and

Associated Personnel 5999. The Threshold for Determining Whether the UN Forces Have

Become Parties to an Armed Conflict 60210. The UN Post-Conflict Administration and the Law of

Occupation 60210.1. The UN Practice Relating to Post-Conflict

Administration 60210.2. The Appraisal of the Applicability of the Law of

Occupation to the UN Administration 60411. Conclusion 605

PARTV

THEORETICAL APPRAISAL

Chapter 23: The Nature of Customary International HumanitarianLaw Revisited 611

1. Introduction 6112. Inquiries into the Formation of Customary International Law in

General 6122.1. Two Constituent Elements: State Practice and Opinio

Juris 6122.2. Some Problems Relating to State Practice 6132.3. Can Verbal Acts Constitute Practice Free of a Specific

Normative Belief? 6132.4. Some Problems Relating to Opinio Juris 6152.5. Subjective Elements of State Practice, Which are Indicative

of Opinio Juris 6183. Methodology of Ascertaining Customary IHL 620

3.1. Inductive Approach 6203.2. Deductive Approach 621

4. The Relationship between a Treaty-based Norm and CustomaryLaw 6224.1. The Implications of the North Sea Continental Shelf Cases

Revisited 622

xxiv Contents

4.2. The Requirement of "a very widespread and representativeparticipation in the convention" 624

4.3. Critical Appraisal of the Relationship between Treaty-BasedNorms and Customary Law 625

5. "Modern" vs. "Traditional" Understanding of the Formation ofCustomary International Law 6285.1. Overview 6285.2. Traditional Customs 6295.3. Modern Understanding of Customs 6305.4. Fidler's Three Perspectives of Evaluating Modern

Customs 6315.5. Descriptive Accuracy and Normative Appeal Revisited 6355.6. Modern Customs Based on Deduction from Moral

Substance 6386. Apology and Utopia: Dealing with Koskenniemi's Critique of

Legal Argumentations 6416.1. Overview 6416.2. Traditional Customs and Apology 6436.3. Modern Customs and Utopia 644

7. Evaluations of Koskenniemi's Argumentation 6457.1. Overview 6457.2. Beckett's Proposal for a "Virtual Sovereign" and the

Reflexive Process of Custom Formation 6458. Dworkin's Interpretative Theory 6479. The Sliding Scale Conceptualisation of Custom 649

10. Anthea Roberts' Proposal to Balance Fit and Substance inRawls' "Reflective Methodology" 653

11. Conclusion 655

Chapter 24: Identifying Customary IHL in Occupied Territories onthe Basis of its Interplay with Customary International HumanRights Law 6571. Introduction 6572. The Proposed Framework of Customary IHL Relating to

Fundamental Guarantees in Occupied Territories 6573. The Process of Ascertaining Customary IHL in the Interaction

with Customary International Human Rights Law 6594. Distinct Variables in the Context of the Law of Occupation 661

4.1. Overview 6614.2. The Underlying Concept of Military Necessity 661

Contents xxv

4.3. Shifting Nature of Occupied Territories: Do Areas RemainOccupied Territories Subject to Law Enforcement, orBecome Subject to Rules of Conduct of Warfare? 662

4.4. Implications of Individual Criminal Responsibility 6635. Conclusion 666

Table of Case-Law 669Table of Treaties and Other Major International Instruments 703Bibliography 709Index 741