1 Emphasis added.

2 See US Tribunal at Nuremberg, Hostages trial, Law Reports of Trial of War Criminals, Vol. III, UN War Crimes Commission, 1949, London, p. 55.

3 In a recent case – DRC v. Uganda – the ICJ was emphatic that it had to examine the prevailing facts before stating that Uganda had in fact established its authority over parts of the territory of the Democratic Republic of the Congo; ICJ, Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, 19 December 2005, para. 173.

4 To interpret the notion of occupation, the ICTY made literal use of the Nuremberg Tribunal's formula and decided that ‘the determination of the existence of a state of occupation is a question of fact’; ICTY, Prosecutor v. M. Naletilić and V. Martinović, Judgment, Case No. IT-98-34-T, Trial Chamber, 31 March 2003, para. 211 (hereafter Naletilić case).

5 FM 27-10, Department of the Army Field Manual: The Law of Land Warfare, Washington, DC, July 1956. See also, for instance, Canada, Joint Doctrine Manual: Law of Armed Conflict at Operational and Tactical Levels, JAG Office, 2001, Section 1203(1); New Zealand Defence Force, DM 112, Interim Law of Armed Conflict Manual, 1992, Section 2(1302)(1).

6 US Tribunal of Nuremberg, Von List case, Law Reports of Trial of War Criminals, Vol. VIII, 1949, p. 59.

7 For instance, it has been extremely difficult to identify the precise date marking the beginning of the occupation of Iraq in 2003. This is mainly because of the continuation of hostilities, the advance of the coalition troops, and the initial uncertainty about their ability to exert authority over parts of Iraqi territory.

8 See, for instance, Article 1 of the International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874; Article 41 of the Oxford Manual adopted in 1880 by the Institute of International Law; and Article 42 of the Regulations concerning the Laws and Customs of War on Land (Hague Convention II), The Hague, 29 July 1899.

9 Federal Political Department of Switzerland, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A (Bern), pp. 650, 672, 675–676, 728, and 811.

10 Article 154 of the Fourth Geneva Convention (GC IV) states: ‘In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations annexed to the above-mentioned Conventions of The Hague’.

11 It should also be noted that, at the domestic level, the Supreme Court of India indicated in 1969 that Article 42 of the Hague Regulations was the only legal basis on which the determination of a state of occupation should be made. See Supreme Court of India, Rev. Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v. The State of Goa, 26 March 1969, All India Reporter, 1970, SC 329, Supreme Court Reports, 1970, pp. 87–102.

12 ICTY, Naletilić case, above note 4, paras. 215–216.

13 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 78; ICJ, DRC v. Uganda, above note 3, paras. 172–177.

14 The authors of the ICRC's Commentaries on the Geneva Conventions argued in 1958 that the concept of occupation under GC IV would be broader than that used under the Hague Regulations as far as the protection of individuals was concerned. See Commentary on the Geneva Conventions of 12 August 1949, Vol. IV, ICRC, Geneva, 1958, p. 60. This view may be found in recent international jurisprudence as well as in scholarly writings. See Koutroulis, Vaios, ‘L'affaire des activités armées sur le territoire du Congo: une lecture restrictive du droit de l'occupation?’, in Revue belge de droit international, No. 2, 2006, pp. 719 ffGoogle Scholar. However, in the absence of any express definition of occupation under GC IV and given the operation of its Article 154, which emphasizes the supplementary character of the instrument in relation to the Hague Regulations, the assertion that GC IV would provide a distinct definition of occupation has no legal basis under IHL. Article 154 of GC IV governs the relationship between GC IV and the Hague Regulations and makes it clear that the former has not changed the definition contained in Article 42 of the latter. Moreover, one should not misinterpret the position expressed in the ICRC's Commentaries as well as in the ICTY's decision in the Naletilić case (see above note 4, para. 221). They suggest only that certain provisions of the law of occupation, as set out in GC IV, should also apply during the invasion phase. The interpretations given in the ICRC's Commentaries and in the ICTY decision do not persuasively demonstrate that the definition of occupation found in Article 42 of the Hague Regulations has been relaxed to the extent that effective control over foreign territory is no longer required for applying occupation law norms. On the contrary, they simply mean that the threshold of application for certain norms of GC IV has been lowered so that they can also take legal effect during the invasion phase. In the Naletilić decision, the ICTY said only this: ‘the application of the law of occupation as it effects [sic] “individuals” as civilians protected under Geneva Convention IV does not require that the occupying power have actual authority’. The very last part of this sentence clearly indicates that effective control is not necessary to give effect to the protections set out in Part III, Section III, of GC IV. The definition of occupation contained in Article 42 of the Hague Regulations is therefore not affected. The threshold of application of Part III, Section III, of GC IV is diminished only for the purposes of according more protection to individuals during the invasion phase. Such an interpretation can also be inferred from the jurisprudence of the Eritrea–Ethiopia Claims Commission (Partial Awards: Western Front, Aerial Bombardment and Related Claims – Eritrea's Claims 1, 3, 5, 9–13, 14, 21, 25, and 26, Decision, 19 December 2005, para. 27). See also Akande, Dapo, ‘Classification of armed conflicts: relevant legal concepts’, in Wilmshurt, E. (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 44 ffGoogle Scholar.

15 Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, Princeton, 1993, p. 4Google Scholar; Von Glahn, Gerhard, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation, University of Minnesota Press, Minneapolis, 1957, pp. 28–29Google Scholar; Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 42 ff.CrossRefGoogle Scholar; Shany, Yuval, ‘Faraway, so close: the legal status of Gaza after Israel's disengagement’, in Yearbook of International Humanitarian Law, 2005, Vol. 8, pp. 374 ff.CrossRefGoogle Scholar; Zwanenburg, Marten, ‘The law of occupation revisited: the beginning of an occupation’, in Yearbook of International Humanitarian Law, 2007, Vol. 10, pp. 109 and 128–129CrossRefGoogle Scholar; Gasser, Hans-Peter, ‘Belligerent occupation’, in Fleck, D. (ed.), The Handbook of International Humanitarian Law, 2nd edition, Oxford University Press, Oxford, 2008, pp. 273–274Google Scholar; Bothe, Michael, ‘Beginning and end of occupation’, in Collegium, No. 34, Autumn 2006, pp. 26 ffGoogle Scholar.

16 See, for instance, Australian Defence Force, Law of Armed Conflict: Commander's Guide, 1994, para. 1202; Canada, Joint Doctrine Manual, above note 5, para. 1203; Germany, The Handbook of Humanitarian Law in Armed Conflict, 1995, para. 526; United Kingdom, Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, paras. 11.2–11.3; US Army, Field Manual 27-10, above note 5, paras. 351 ff.; New Zealand, Interim Law of Armed Conflict Manual, above note 5, 1302; Sweden, International Humanitarian Law in Armed Conflict, with Reference to the Swedish Total Defence System, Swedish Ministry of Defence, 1991, section 6.1.2; Argentina, Leyes de Guerra, Ejercito Argentino, RC-46-1, 1969, section 5.001; Germany, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, 1992, para. 526; France, Manuel de droit des conflits armés, Ministère de la Défense, SGA, 2003, p. 121.

17 For the purposes of this article, ‘occupation test’ means the criteria inferred from Article 42 of the Hague Regulations, whose fulfilment on a cumulative basis will make it possible to designate a situation as an occupation within the meaning of IHL.

18 Daniel Thürer and Malcolm MacLaren assert that occupation exists ‘when a party to a conflict is exercising some level of authority over enemy territory’. See ‘“Ius post bellum” in Iraq: a challenge to the applicability and relevance of international humanitarian law?’, in Dicke, Klaus et al. (eds), Weltinnenrecht: Liber Amicorum Jost Delbrück, Duncker & Humblot, Berlin, 2005, p. 757Google Scholar.

19 Y. Dinstein, above note 15, pp. 43–44.

20 The choice of the word ‘effective’, which is commonly associated with the notion of control in order to define the nature of the foreign forces' ascendancy over the territory in question, reflects the analogy made between occupation and blockade during the negotiations related to the Brussels Declaration of 1874. At the discussions that took place during the drafting process of this Declaration, the delegates, almost without exception, pointed out the similarities between occupation and blockade: both had to be effective to be said to exist for the purposes of the law of armed conflict. See M. Zwanenburg, above note 15, p. 102; Darcy, Shane and Reynolds, John, ‘“Otherwise occupied”: the status of the Gaza Strip from the perspective of international humanitarian law’, in Journal of Conflict and Security Law, Vol. 15, No. 2, 2010, pp. 218–220CrossRefGoogle Scholar; Lawrence, T. J., The Principles of International Law, 6th edition, Macmillan & Co, London, 1917, pp. 435–436Google Scholar; Molony Spaight, James, War Rights on Land, Macmillan & Co, London, 1911, pp. 328–329Google Scholar. It was argued that, just as blockades are not recognized unless they are effective, the existence of occupations, too, must be decided on the basis of effective control. In this regard, a consensus emerged among the delegates indicating that, in fact, an occupation would come into existence only to the extent to which the foreign army could exercise a certain degree of control over the territory in question. See Graber, Doris A., The Development of the Law of Belligerent Occupation, 1863–1914: A Historical Survey, Columbia University Press, New York, 1949Google Scholar.

21 Schwarzenberg, Georg, International Law as Applied by International Courts and Tribunals, Vol. 2: The Law of Armed Conflict, Stevens, London, 1968, pp. 274–276.Google Scholar The same position had previously been expressed by G. Von Glahn, above note 15, pp. 27–29. See also E. Benvenisti, above note 15, p. 4, who defined occupation as ‘the effective control of a power (be it one or more states or an international organization such as the UN) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory’. More recently, Yoram Dinstein described the notion of effective control as indispensable for the purposes of determining the existence of an occupation (Y. Dinstein, above note 15, pp. 42–43). Finally, Robert Kolb and Sylvain Vité say that, for determining the existence of an occupation, ‘tout revient à se demander à partir de quel moment le contrôle de l'armée ennemie est suffisamment effectif au sens de l'article 42 du Règlement de 1907’, in Le droit de l'occupation militaire: perspectives historiques et enjeux juridiques actuels, Bruylant, Bruxelles, 2009, p. 142.

22 ICTY, Prosecutor v. Duško Tadić, Trial Chamber, Judgment, 7 May 1997, Case No. IT-94-1-T, para. 580: ‘Whether or not the victims were “protected persons” depends on when it was that they fell into the hands of the occupying forces. The exact moment when a person or area falls into the hands of a party to a conflict depends on whether that party has effective control over an area’. See also, ICJ, DRC v. Uganda, above note 3 para. 175.

23 For example, US Army, Field Manual 27-10, above note 5, section 352 (addressing the distinction between invasion and occupation), indicates that ‘an invader may attack with naval or air forces or its troops may push rapidly through a large portion of enemy territory without establishing that effective control which is essential to the status of occupation’. See also UK, Manual, above note 16, section 11.7; Italy, Manuale di diritto umanitario, Stata maggiore della Difesa, SMD-G-014, 1991, p. 12 at 32; New Zealand, Interim Law of Armed Conflict Manual, above note 5, 1302; Germany, Humanitäres Völkerrecht, above note 16, para. 526; Canada, Joint Doctrine Manual, above note 5, para. 1203.7.

24 See US Tribunal of Nuremberg, Von List case, above note 6, pp. 55–56.

25 Ibid.

26 ICJ, DRC v. Uganda, above note 3, para. 173.

27 ICTY, Naletilić case, above note 4, para. 217. It is important to note that some of the elements identified by the ICTY constitute criteria (for instance, that the Occupying Power must be in a position to substitute its own authority), while others are only useful indicators for identifying whether the constitutive criteria of occupation have been effectively met (for instance, the establishment by the Occupying Power of a temporary administration).

28 UK, Manual, above note 16, point 11.3, p. 275. Other military manuals have employed the same interpretation of the notion of effective control, reflecting a common reading, as it were, of the constitutive elements of the concept of occupation for the purposes of IHL. See, for instance, Canada, Joint Doctrine Manual, above note 5, para. 1203; US Army, Field Manual 27-10, above note 5, para. 355; New Zealand, Interim Law of Armed Conflict Manual, above note 5, 1302(4).

29 See G. Von Glahn, above note 15, pp. 28–29; M. Bothe, above note 15, pp. 26–32; Y. Shany, above note 15, pp. 374–378; M. Zwanenburg, above note 15, pp. 128–130; Y. Dinstein, above note 15, pp. 35–36 and 38–45; Benvenisti, Eyal, ‘The law on the unilateral termination of occupation’, in Giegerich, T. and Heinz, U. (eds), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference, Berlin: Duncker & Humblot, 2009, pp. 371–375Google Scholar; H.-P. Gasser, above note 15, pp. 273–274.

30 M. Bothe, ‘“Effective control”: a situation triggering the application of the law of belligerent occupation’, background document for the ICRC project on occupation and other forms of administration of foreign territory, First meeting of experts in Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by T. Ferraro, ICRC, Geneva, April 2012, pp. 36 ff [hereinafter ‘ICRC Report on Occupation’]. See also M. Zwanenburg, above note 15, pp. 109–110.

31 Gisha – Legal Center for Freedom of Movement, ‘Disengaged occupiers: the legal status of Gaza’, Position Paper, 2007, pp. 69 ff. See also, M. Zwanenburg, above note 15, pp. 125 ff. However, Zwanenburg stresses that technological and military developments do not lead to the conclusion that it is no longer necessary to have hostile foreign troops on the ground for the purposes of the effective-control test.

32 It must be noted that the requirement of the foreign military presence cannot be questioned for the establishment of an occupation. If one might argue that an occupation can be maintained – once established – by a kind of remote control under specific circumstances, it is submitted here that the establishment of an occupation still requires the physical presence of the foreign armed forces in the invaded areas.

33 Gisha, above note 31.

34 R. Kolb and S. Vité, above note 21, pp. 179–180.

35 In other words, occupation and its related element of effective control cannot – in principle – be established and maintained solely by exercising power from beyond the boundaries of the occupied territory. The test of effective control cannot include the potential ability of one of the parties to the armed conflict to project power through its forces positioned outside the ‘occupied territory’ without stretching the concept of occupation so much that it makes any assignment of responsibilities under occupation law meaningless. Otherwise, any state capable of invading the territory of its weaker neighbours by virtue of its military superiority, and of imposing its will there, would be said to be in ‘effective control’ of that territory and considered an occupant for the purposes of IHL. Such an interpretation would be unreasonable. See, in particular, Eyal Benvenisti, ‘Responsibility for the protection of human rights under the interim Israeli–Palestinian agreements’, in Israeli Law Review, 1994, pp. 308–309. However, one should wonder whether this position could be nuanced in very specific and exceptional circumstances, notably when the occupying forces leave the area under their control while still maintaining key elements of authority therein. See below, ‘A legal test for determining whether a situation qualifies as an occupation for the purposes of IHL’.

36 The drafters of IHL instruments that contain provisions related to occupation have always assumed that the armed forces of the invader must be present in the territory for it to be regarded as occupied under IHL. For instance, during the negotiations for the Brussels Declaration of 1874, most of the delegates rejected a proposal made by the German delegate according to which an occupation could be said to exist even in the absence of occupying forces on the ground. Their rejection of the German delegate's proposal was linked to the view that an occupation, like a blockade, had to be effective; and such effectiveness could not be achieved without the deployment of foreign troops in occupied territory.

37 M. Zwanenburg above note 15, p. 105; S. Darcy and J. Reynolds, above note 20, pp. 218–219.

38 See, for instance, Articles 43, 46, 52, 53, 55, and 56 of the Hague Regulations, and Articles 55, 56, 59, and 66 of GC IV.

39 See H.-P. Gasser, above note 15, para. 527: ‘Supremacy in the air alone does not fulfil the requirement of actual occupation’. See also, Y. Dinstein, above note 15, p. 48: ‘As such, belligerent occupation of the airspace is inconceivable independently of effective control over the subjacent land. This is a corollary of the proposition that air supremacy alone does not qualify as effective control’.

40 See H.-P. Gasser, above note 15, para. 527.

41 See E. Benvenisti, above note 15, p. 4.

42 G. Von Glahn, above note 15, p. 28. This assumption is also reflected in US Army, Field Manual 27-10, above note 5, para. 356: ‘Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory’.

43 One might wonder whether, in some specific instances (in particular when the belligerents' territories are contiguous), the same result could be attained by positioning troops in strategic places located just outside the occupied territory.

44 IHL experts, such as M. Bothe, while referring to the definition of belligerent occupation laid down in Article 42 of the Hague Regulations, have identified two essential characteristics: military presence and lack of consent from the occupied state. Bothe asserts that the cumulative existence of these two elements will determine the beginning and the end of occupation. He also states that a certain threshold of military presence must be passed for the occupant to be said to exert effective control. See M. Bothe, above note 15, p. 27. H.-P. Gasser, who has also stressed the requirement regarding the occupant's presence for the purposes of effective control, writes: ‘The question [of occupation] is whether in fact the armed forces that have invaded the adversary's territory have brought the area under their control through their physical presence, to the extent that they can assume the responsibilities which attach to an occupying power’. See H.-P. Gasser, above note 15, p. 274 (emphasis added). A. Roberts has written that ‘At the heart of treaty provisions, court decisions and legal writings about occupations is the image of the armed forces of a State exercising some kind of domination or authority over inhabited territory outside the accepted international frontiers’. See Roberts, Adam, ‘What is military occupation?’, in British Yearbook of International Law, Vol. 55, 1984, p. 300Google Scholar (emphasis added). Military presence as a precondition for the occupation test can be also inferred from writings that analyse the conditions for the termination of occupation: many scholars who emphasize that the test for the end of occupation mirrors that for its beginning say that an occupation ends when the troops leave the foreign territory. As Oppenheim points out, ‘occupation comes to an end when an occupant withdraws from a territory, or is driven out of it’. See Oppenheim, L. F. L., International Law, Vol. 2, Longmans, London, 1952, p. 436Google Scholar. For Gerhard Von Glahn, ‘normally, military occupation ends through permanent and voluntary withdrawal of the occupying power’. See G. Von Glahn, above note 15, p. 30. More recently, Yuval Shany has stressed that ‘none of the arguments raised against the negation of the first condition (physical presence in the territory) is ultimately convincing. First, lex lata still seems to insist upon physical presence of hostile forces on the ground. This is not mere formalism, as it is hard to conceive of the manner in which an occupier with no ground presence could realistically be expected to execute its obligations under jus in bello’. See Y. Shany, above note 15, p. 380.

45 ICJ, DRC v. Uganda, above note 3, para. 173 (emphasis added).

46 Y. Shany, above note 15.

47 ‘Territory is considered occupied when it is actually placed under the authority of the hostile army’.

48 ‘The occupation extends only to the territory where such authority … can be exercised’.

49 ICRC Report on Occupation, above note 30, p. 19.

50 This conception of the notion of authority reflects the views of various delegates during the negotiations that led to the 1874 Brussels Declaration. For instance, on that occasion Baron Jomini, the Russian delegate, observed that ‘if the occupier is in position to exercise his authority, the occupation is a reality; from the moment that this power no longer exists, the occupation ceases’. See UK, House of Commons, Parliamentary Papers, ‘Correspondence Respecting the Proposed Conference at Brussels on the Rules of Military Warfare (Miscellaneous, No. 1)’, 1875, p. 259.

51 Emphasis added.

52 Shraga, Daphna, ‘Military occupation and UN transitional administrations: the analogy and its limitations’, in Cohen, M. G. (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum L. Caflisch, M. Nijhoff, Leiden, 2007, p. 481Google Scholar.

53 See above note 6, pp. 55–56.

54 High Court of Justice, Israel, 102/82, Tsemel v. Minister of Defence, 37(3), P.D. pp. 373–374.

55 ICJ, DRC v. Uganda, above note 3, para. 173, emphasis added.

56 Von List case, above note 56, p. 59 See also ICTY, Naletilić case, above note 4, para. 217.

57 See, for instance, UK, Manual, above note 16, point 11.3, p. 275.

58 See above note 29.

59 See Y. Shany, above note 15, p. 376.

60 See US Tribunal at Nuremberg, Hostages trial, above note 2, p. 56. The Court stated that ‘while it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant’.

61 Y. Dinstein, above note 15, p. 45.

62 M. Bothe, above note 15, p. 29; Gisha, above note 31, pp. 82 ff.

63 Eritrea–Ethiopia Claims Commission, Partial Awards: Central Front - Eritrea's Claims 2, 4, 6, 7, 8 & 22, paras. 67, 71, 83–84.

64 ‘Pacific occupation’ does not trigger the application of occupation law.

65 M. Bothe, above note 15, p. 30: ‘where it is considered that there is no genuine, freely expressed consent given by the legitimate and effective government, the foreign military presence must be regarded as belligerent occupation’.

66 Kelsen, Hans, Principles of International Law, The Lawbook Exchange, Clark, NJ, 2003, p. 279Google Scholar. Whether an entity is an ‘effective government’ can be determined by reference to its capacity to control the territory and population, as well as its willingness to carry out the international obligations incumbent on the state. See Nguyen, Quoc Dinh, Dailler, Patrick, and Pellet, Alain, Droit international public, 7th edition, L.G.D.J., Paris, 2002, pp. 416–417Google Scholar.

67 Commentary on the Geneva Conventions of 12 August 1949, above note 14, pp. 21–22.

68 ICRC Report on Occupation, above note 30, p. 29.

69 Article 47 of GC IV: ‘Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory’.

70 This presumption is particularly important and relevant, especially when a new local government established during the occupation consents to the foreign forces' presence on its territory and – potentially – their exercise of authority therein. In such cases, it is submitted here that the situation on the ground will always be the decisive factor in order to determine whether such consent has terminated the occupation and therefore ended the application of occupation law. If the situation in terms of exercise of authority has not changed on the ground and foreign forces still exert effective control over the territory in which they are deployed, the existence of genuine consent will be more difficult to assess. In such situations, occupation law should continue to apply, since it is difficult to imagine a local government delegating entirely effective control – and related authority – over its own territory (or parts thereof) to foreign forces that were previously the Occupying Power. When a local government consents to the presence of foreign forces that were previously occupying the territory, this consent – to be considered genuine – should be accompanied by an effective transfer of authority from the foreign forces to the local government and thus be characterized by a significant degree of empowerment of the local government, demonstrating the independence of the latter vis-à-vis the foreign forces.

71 This test equally applies to the forces of international or regional organizations. Nothing under occupation law permits the argument that this test would be different if the effective control over a foreign territory were exerted by armed forces of an international or regional organization. See Ferraro, Tristan, ‘The applicability of the law of occupation to peace forces’, in Beruto, Gian Luca (ed.), International Humanitarian Law, Human Rights and Peace Operations, 31st San Remo Round Table on current problems of international humanitarian law, 4–6 September 2008, International Institute of Humanitarian Law, 2009, pp. 133–156Google Scholar.

72 It has been argued by some that Article 6(3) of GC IV sanctioned a new definition for the end of occupation, one that changed the criterion from effective control to the exercise of functions of government. See ICRC Report on Occupation, above note 30, p. 30. However, it is submitted here that this position is premised on a misinterpretation of Article 6(3). This provision has never been intended to provide a criterion for assessing the beginning and end of occupation, but only to regulate the end or the extent of GC IV's applicability on the basis that occupation would still continue. Article 42 of the Hague Regulations and Article 6(3) of GC IV are two distinct provisions pertaining to different specific material. Therefore, Article 6(3) can in no way be used as a provision of reference for determining the end of occupation.

73 R. Kolb and S. Vité, above note 21, p. 150. See also, Y. Shany, above note 15, p. 378.

74 ICJ, DRC v. Uganda, above note 23, paras. 172–173.

75 This retention of competences can also – but not necessarily – be accompanied by the prohibition of the local authorities exerting certain governmental functions.

76 The rationale of the law of occupation is the necessity to organize the allocation of responsibilities between the belligerents with the view to avoiding, as far as possible, vacuum of authority and protection in occupied territory.

77 It is important to note that the first part of this test refers to the notion of ‘overall control’ over a group of individuals, which is used with the view to assessing whether the actions of such a group can be attributed to a foreign state. Should this be the case, the second part of the test addresses the question as to whether this group has ‘effective control’ over the concerned territory for the purposes of classifying the situation as an occupation for the purposes of IHL. Therefore, the first part of the test (i.e. ‘overall control over de facto local authorities’) relates to the concept of imputability under public international law, whereas the second part of the test (‘effective control of a foreign territory’) corresponds to the notion of effective control under IHL, which is at the core of the notion of occupation. Therefore, the two distinct parts of the test must be cumulatively satisfied in order to determine the existence of an indirect effective control exerted by one state over the territory of another.

78 ICTY, Tadić case, 7 May 1997, above note 22, para. 584. In March 2000, the ICTY confirmed this interpretation in the Blaškić case. On that occasion it stated: ‘In these enclaves, Croatia played the role of occupying Power through the overall control it exercised over the HVO [a local militia, the “Croatian Defence Council”], the support it lent it and the close ties it maintained with it. Thus, by using the same reasoning which applies to establish the international nature of the conflict, the overall control exercised by Croatia over the HVO means that at the time of its destruction, the property of the Bosnian Muslims was under the control of Croatia and was in occupied territory’ (ICTY, Prosecutor v. Tihomir Blaškić, Trial Chamber, 3 March 2000, Case No. IT 95-14-T, para. 149). However, in the Naletilić case (2000), the Trial Chamber challenged the position adopted by the ICTY in the Blaškić case: ‘The Chamber notes that the jurisprudence of the Tribunal relating to the legal test applicable is inconsistent. In this context, the Chamber respectfully disagrees with the finding in the Blaškić Trial Judgement argued by the Prosecution. The overall control test, submitted in the Blaškić Trial Judgement, is not applicable to the determination of the existence of an occupation. The Chamber is of the view that there is an essential distinction between the determination of a state of occupation and that of the existence of an international armed conflict. The application of the overall control test is applicable to the latter. A further degree of control is required to establish occupation’ (ICTY, Naletilić case, above note 4, para. 214). However, this latter piece of jurisprudence can be challenged, since the Trial Chamber confuses overall control over a territory with overall control over an entity that itself has effective control over the territory concerned.

79 ICJ, DRC v. Uganda, above note 3, para. 177: ‘The Court observes that the DRC makes reference to “indirect administration” through various Congolese rebel factions and to the supervision by Ugandan officers over local elections in the territories under UPDF control. However, the DRC does not provide any specific evidence to show that authority was exercised by Ugandan armed forces in any areas other than in Ituri district. The Court further notes that, although Uganda recognized that as of 1 September 1998 it exercised “administrative control” at Kisangani Airport, there is no evidence in the case file which could allow the Court to characterize the presence of Ugandan troops stationed at Kisangani Airport as occupation in the sense of Article 42 of the Hague Regulations of 1907. Neither can the Court uphold the DRC's contention that Uganda was an occupying Power in areas outside Ituri controlled and administered by Congolese rebel movements. As the Court has already indicated, the evidence does not support the view that these groups were “under the control” of Uganda’.

80 In their recent book, Robert Kolb and Sylvain Vité do not seem to adhere fully to the theory of indirect effective control, as they emphasize the necessity of the presence of foreign boots on the ground. They only concede that ‘dans le cas d'un exercice d'autorité indirect, par contrôle global ou effectif d'une faction interposée, il n'est pas exclu que certains devoirs issus du droit de l'occupation puissent ponctuellement s'appliquer, du moins indirectement’ (R. Kolb and S. Vité, above note 21, pp. 180–181).

81 See International Law Commission, Articles on Responsibilities of States for Internationally Wrongful Acts, with Commentaries (2001), Article 8, Yearbook of the International Law Commission, 2001, Vol. II, Part Two. The word ‘agent’ should be interpreted broadly, as any person through whom the foreign state acts. See ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, ICJ Reports, 1949, p. 1977.

82 The notion of multinational occupation should not be confused with occupation conducted by an international organization such as the UN. It is submitted here that such an international organization can also qualify as an occupying power for the purposes of IHL. On this issue, see T. Ferraro, above note 71, pp. 133–156.

83 D. Thürer and M. MacLaren, above note 18, pp. 759–762.

84 A complementary approach based on the law of state responsibility may also be used. The International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts could be a useful tool in this regard, for distinguishing members of a coalition involved in an occupation from those who should not be classified as Occupying Powers. According to this view, if the actions of a member state's armed forces could be attributed exclusively to the organization running the coalition per se or to other states participating in the coalition, that state should not be classified as an Occupying Power, since it has relinquished the effective or overall control over the troops it has put at the coalition's disposal.

85 Dörmann, Knut and Colassis, Laurent, ‘IHL in the Iraq conflict’, in German Yearbook of International Law, Vol. 47, 2004, pp. 302 ffGoogle Scholar.

86 Roberts, Adam, ‘The end of occupation in Iraq’, in International and Comparative Law Quarterly, Vol. 54, June 2005, p. 33Google Scholar. See also Lijnzaad, Liesbeth, ‘How not to be an Occupying Power: some reflections on UN Security Council Resolution 1483 and the contemporary law of occupation’, in Lijnzaad, Liesbeth, van Sambeek, Johanna, and Tahzib-Lie, Bahia (eds), Making the Voice of Humanity Heard, Martinus Nijhoff, Leiden, 2004, p. 298Google Scholar : ‘carrying out tasks under command or instruction of an Occupying Power tends to confer Occupying Power status on those cooperating with them, particularly when such tasks are core to the position of an Occupying Power. This is clearly the case when tasks carried out are crucial to the way in which the Authority executes its role as an Occupying Power and carries out its administrative responsibilities. Participation may create responsibilities which may not be politically desirable. Thus, this late participation could confer the status of Occupying Power on such cooperating states, depending on the nature of their cooperation’.

87 This proposed presumption seems to be corroborated by UK, Manual, above note 16, section 11.3.3, which implies that all coalition members are Occupying Powers for the purposes of IHL: ‘in cases where two or more states jointly occupy territory (following a coalition military campaign, for example), it is desirable that there be an agreement between them setting out the relationship between the occupying powers’. This view is shared by Y. Dinstein, who states: ‘A number of Occupying Powers may act together as a coalition governing a single occupied territory. If they maintain unified command, as happened in Iraq in 2003–4, the Occupying Powers will bear the brunt of joint responsibility for what is happening within the area subject to their combined effective control. The coalition partners may also opt to divide the occupied territory into discrete zones of occupation with little or no overlap of authority. Should each Occupying Power administer its own zone, it will assume sole responsibility commensurate with the span of its respective effective control’. See Y. Dinstein, above note 15, pp. 48–49.