Legal reasoning and the applicability of international human rights standards during military occupation

International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law

Volumn , Issue , 2008, Pages 121-132

  McCarthy, Conor ^a  

^a JESUS COLLEGE   (United Kingdom)

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EID: 84882642398     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/ej.9789004163171.1-608     Document Type: Chapter

References (26)

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ( July 9, 2004), 2004 I.C.J. Rep. 131 [hereinafter The Wall Advisory Opinion].
2. John Dugard, Enforcement of Human Rights in the West Bank and the Gaza Strip, in International Law and the Administration of International Territories 461 (Emma Playfair ed. 1992).
3. Major Richard Baxter, The Duty of Obedience to a Belligerent Occupant, 27 Brit. Y.B. Int'l L. 235 (1950).
4. The article also goes on to state that "[t]he occupation extends only to the territory where such authority has been established and can be exercised." Article 42, Hague Convention IV (1907): Respecting the Laws and Customs of War on Land, wiThannexed Regulations [hereinafter HR].
5. The meaning attributed to "armed Conflict" is of course a matter of scholarly debate. (See Leslie Green, The Contemporary Law of Armed Conflict 70 (2nd ed. 2000) However, the ICRC commentary to the Common Article 2 of the Geneva Conventions 1949 states that: "Any diff erence arising between two states and leading to the intervention of armed forces is an armed Conflict within the meaning of article 2 even if one of the parties denies the existence of a state of war." Jean Pictet (ed.), Commentary I Geneva Convention 32 (1952).
6. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
7. U.N.T.S. 287 [hereinafter GC IV].
8. Adam Roberts, Prolonged Military Occupation: The Israeli Occupied Territories Since 1967, 84 Am. J. Int'l L. 44 (1990).
9. Emmerich de Vattel expressed the point thus: Of two laws or two conventions, we ought (all other circumstances being equal) to prefer the one which is less general and which approaches nearer the point in question: because special matter admits of fewer exceptions than that which is general; it is enjoined wiThgreater precision and appears to have been more pointedly intended. Emerich De Vattel, Law of Nations, § 316, 5ThRule (1758). For a more detailed analysis of the nature of lex specialis reasoning and the legal principles which it articulates, see Chapter III, Conor McCarthy, Legal Conclusion or Interpretative Process? Lex Specialis and the Applicability of International Human Rights Standards.
10. At a broader level, the degree of developing law and practice in the post-Conflict arena has led some to argue that a putative tripartite structure for the regulation of armed Conflict in international law is developing - the two traditional strands ( jus ad bellum and jus in bello) being supplemented by a third - jus post-bellum.
11. Christine Bell, Peace Agreements: Their Nature and Legal Status, 100 Am. J. Int'l L. 373 (2006)
12. Carsten Stahn, Jus ad bellum', jus in bello' . 'jus post bellum'?: Rethinking the Conception of the Law of Armed Force, 17 Eur. J. Int'l L. 943 (2006)
13. Brian Orend, Jus Post Bellum, 31 Journal of Social Philosophy 117 (2000).
14. Richard Caplan, International Governance of War Torn Territories: Rule and Reconstruction 3 (2005) [hereinafter Caplan].
15. Although the Brahimi Report contained extensive detailed discussion of the role of human rights standards in such operations, international humanitarian law was only dealt wiThin passing. Moreover, the report did not at any stage address the law of military occupation nor the extent to which it may be relevant in U.N. peace operations.
16. The full titles for these administrations are respectively the United Nations Interim Administration Mission in Kosovo and United Nations Transitional Administration Mission in East Timor.
17. UNMIK Reg. No. 1999/1, On the Authority of the Interim Administration in Kosovo ( July 25, 1999), and UNTAET Reg. No. 1999/1, On the Authority of the Transitional Administration in East Timor (Nov. 27, 1999). The applicable law was a particularly controversial question in Kosovo wiThethnic Albanians strongly objecting to Yugoslav laws remaining applicable notwithstanding the necessary compliance wiThinternational human rights standards. Later in 1999 UNMIK decided that the applicable law would in fact be the law in force before the revocation of Kosovo's autonomy on March 22, 1989 (see UNMIK Reg. No. 1999/24).
18. Indeed it is arguable that there is little justifi cation in principled legal terms for distinguishing international territorial administrations from military occupations, except in so far as mandated by Security Council resolutions. Distinguishing such operations on the basis of the consent of the host state is often rather fi ctive.
19. Steven Ratner, Foreign Occupation and International Territorial Administration: The Challenges of Convergence, 16 Eur. J. Int'l L. 695 (2005).
20. Marco Sassoli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, Eur. J. Int'l L. 661, 676 (2005).
21. Jelena Pejic, The Right to Food in Situations of Armed Conflict: The Legal Framework, Int'l Rev. Red Cross 1097 (2001).
22. Where the resources of the occupied territory are inadequate the occupying power is obliged to bring in the necessary supplies. Article 55 GC IV.
23. The status of the right to food in respect of customary international law is uncertain. It is arguable that the core element of the right to food is a customary obligation. However, it is doubtful that the more burdensome components of Article 11 are part of customary law.
24. SmiThNarula, The Right to Food: Holding Global Actors Accountable Under International Law, 44 Colum. J. Transnat'l L. 691 (2006).
25. Margret Vidar, The Right to Food in International Law, United Nations Food and Agriculture Organization, available at www.fao.org/Legal/rtf/statemts/vidar03.pdf (last visited May 1, 2007).
26. CESCR General Comment 12, U.N. Doc. E/C.12/1999/5 (May 12, 1999).