Belligerent Occupation and ITS Discontents: On the Relationship between International Human Rights Law and Belligerent Occupation’s Law

Abstract

Too many normative instances, that were originally external to the belligerent occupation’s regulatory framework have settled, over the last decades, into that body of law. I refer, for instance, to the Occupying Powers’ demand to intervene significantly in the economic, political and social life of the occupied territory in the light of the need to conduct populations subject to undemocratic regimes, or in very backward economic conditions, on the road to democracy and economic development; or to the expectations that the Occupying Powers fully implement some core human rights obligations incumbent upon them. However, because of the lack of useful information in the current legal framework of international humanitarian law about the scopes that should legitimately lead the activities of the Occupying Powers, these claims threatens to deprive of legal effect the statement that occupation would not implement any transfer of sovereignty to the occupant (the so called ‘sovereign-based’ approach laid down by Articles 42 and 43 of the Hague IV Regulations). After a brief explanation of the doctrinal foundations of belligerent occupation’s law in the broader picture of the more recent practice of Israel in the occupied Palestinian territories (with specific reference to the 2017 Law for the Regulation of Settlement in Judea and Samaria), the Article will focus on the analysis of the relationship between international human rights law (IHRL) and belligerent occupation’s law – in particular by stressing the risks that could arise when an Occupying Power decides to act in order to implement the right to self-determination of the occupied population. The aim is to investigate not only, form a de lege lata perspective, how the more recent practice of Occupying Powers has been influenced by IHRL but also, from a de lege ferenda perspective, to which extent (if any) human rights norms would contribute to fill the gaps and loopholes of the existing regulatory framework on belligerent occupation.