Hague Regulations and Peace Ops in the 21st Cent - Marco Sassoli

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Transcript of Hague Regulations and Peace Ops in the 21st Cent - Marco Sassoli

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    ARTICLE 43 OF THE HAGUE REGULATIONS AND PEACEOPERATIONS IN THE TWENTY-FIRST CENTURYBy

    Marco Sassli, Professor of International LawUniversity of Geneva

    The author would like to thank his research assistants, Danio Campanelli and

    Lindsey Cameron for their invaluable research in preparing this paper and for

    revising the text.

    Background Paper prepared for Informal H igh-Level Expert Meetingon Current Challenges to International Humanitarian Law,

    Cambridge, June 25-27, 2004

    Program on Humanitarian Policy and Conflict Research at Harvard University1033 Massachusetts Avenue Fourth Floor Cambridge, MA 02138 www.hsph.harvard.edu/hpcr

    INTERNATIONALHUMANITARIANLAWRESEARCH INITIATIVE

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    Summary

    UnderArticle 43 of the Hague Regulations, an occupying power must restore and maintainpublic order and civil life, including public welfare, in an occupied territory. This is not aresult it has to achieve, but an aim it has to pursue with all available proportionate means not

    prohibited by International Humanitarian Law (IHL) and compatible with InternationalHuman Rights law. It may suspend the derogable provisions of the latter but is notobliged to do so - if necessary for that purpose. Local legislation and institutions based uponsuch legislation must be respected by an occupying power and by any local authorities actingunder the global control of the occupying power. New legislation or derogations fromexisting legislation are however admissible, for the period of the occupation, if essential for

    (1) the security of the occupying power and of its forces,(2) the implementation of IHL and of International Human Rights Law (as far as the

    local legislation is contrary to such international law),(3) the purpose of restoring and maintaining public order and civil life in the

    territory,(4) the purpose of enhancing civil life during long-lasting occupations,(5) or where explicitly so authorized under UN Security Council Resolutions.

    These obligations and limitations also apply to post-conflict reconstruction efforts, includingconstitutional reforms, economic and social policies.

    Article 43 also applies to peace operations when they are at all subject to IHL, i.e., UNauthorized or mandated operations resulting from an armed conflict or consisting of militaryoccupations meeting no armed resistance, independently of whether the conflict oroperation is authorized by the Security Council and of the aim of the operation. IHL ishowever not applicable if and as long as the operation meets the consent of the state on the

    territory on which it is deployed. The applicability of IHL to UN run operations, includingUN international civil administrations, is more controversial, even when they result from anarmed conflict. When Article 43 is not applicable to such a peace operation, the latter isnevertheless confronted with problems similar to those of an occupying power, whichdeserve solutions similar to those adopted in State practice under Article 43. Limits to suchapplication of Article 43 by analogy are the purpose of the peace operation defined by theUN Security Council, specific instructions by the Security Council and the fact that UNHuman Rights standards, even if laid down in soft law instruments, are binding upon UNoperations.

    Both occupying powers and those involved in peace operations must take into account,

    when engaged in the restoration or maintenance of public order and civil life according toArticle 43 or in legislation permitted under that article, that they are not the sovereign. Theyshould therefore introduce only as many changes as absolutely necessary under Article 43 asunderstood above and stay as close as possible to similar local standards and the localcultural, legal and economic traditions.

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    Article 43 of the Hague Regulations of 1907 reads in the most widely adopted Englishtranslation1of the authentic French2text:

    The authority of the legitimate power having in fact passed into the hands ofthe occupant, the latter shall take all the measures in his power to restore andensure, as far as possible, public order and safety, while respecting, unless

    absolutely prevented, the laws in force in the country.

    The International Military Tribunal at Nuremberg has recognized that this provisioncorresponds to customary international law.3 However, its precise meaning is unclear. Inpractice, occupying powers have sometimes invoked its vagueness to justify broad legislativepowers, and, at other times, have relied on the obligation to respect local laws unlessabsolutely prevented in order to escape their responsibility to ensure the welfare andnormal life of the local population.4

    Prior to any discussion as to whether and how this rule applies or should apply to peaceoperations, it is imperative to clarify what the rule implies for the situations for which it was

    made, i.e., belligerent occupation, including by examining how it has been developed by theFourth Geneva Convention of 1949 (hereinafter Convention IV).

    The three issues application to peace operations, maintenance of public order and safety,and legislative action by an occupying power are closely interrelated.

    The concept of peace operations increasingly covers operations with peace enforcementelements.5It is used for both UN run and UN authorized operations. 6 The applicability ofInternational Humanitarian Law (IHL) (including its rules on belligerent occupation) to UNrun operations is subject to controversy. Beyond that, because of the fundamental separationbetweenjus ad bellum(the rules on the legitimacy of the use of force) and jus in bello (the rules

    1 James B. Scott (ed.), The Hague Peace Conventions and Declarations of 1899 and 1907,3rd ed. (New York: OxfordUniv. Press, 1918).2 Indeed, only the French text is authentic: Dietrich Schindler and Jiri Toman, The Laws of armed conflicts, 3rd ed.(Dordrecht/Geneva: Nijhoff/Henry Dunant Institute, 1988) at 64.3Trial of the Major War Criminals, International Military Tribunal in Nuremberg, published in (1947) 41 AJIL172, in particular at 248-249. See Eyal Benvenisti, The International Law of Occupation (New Jersey: PrincetonUniv. Press, 1993) at 8. Article 43 reaffirms rules already contained in the 1874 Brussels Declaration (cf. infra,note 9). See also Gerhard Von Glahn, The Occupation of Enemy Territory A Commentary on the Law and Practice ofBelligerent Occupation (Minneapolis: Univ. of Minnesota Press, 1957) at 95; David Kretzmer, The Occupation of

    Justice The Supreme Court of Israel and the Occupied Territories(Albany NY: State Univ. of New York Press, 2002) at

    57.4 Benvenisti, supra note 3 at 11.5 Trevor Findlay, in The Use of Force in UN Peace Operations (Oxford: Oxford University Press, 2003) indicatesthat there is a growing consensus that some type of peace enforcement in UN peace operations is possible anddesirable. This concept remains controversial, however. While not dealing explicitly with the term peaceenforcement, the Report of the Panel on United Nations Peace Operations supports a robust mandate. See BrahimiReport21 August 2000 (A/55/305, S/2000/809) at para. 49.6 Adam Roberts and Robert Guelff, eds. Documents on the Laws of War, 3rd ed. (Oxford: Oxford University Press,2002) at 26, indicate that the term applies to UN run and UN authorised peace operations. They refer topeacekeeping operations, whether conducted under UN or otherauspices (emphasis added). The BrahimiReport considers the NATO-led operations in Kosovo, which facilitate the functioning of UNMIK in thecontext of peace operations (supranote 5 at para. 104).

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    on how force may be used, which comprise IHL)7, IHL, including Article 43, certainlyapplies to any other case of belligerent occupation, whether the occupying power acts uponUN authorization, in self-defence, or in violation ofjus ad bellum.

    Article 43 may therefore de jureapply to some peace operations. An occupying power willing

    to withdraw as soon as a stable government is established may anyway be tempted toconsider its presence on a territory resulting from an armed conflict as a kind of peaceoperation. Even beyond that, every occupying power is confronted, when restoring andmaintaining public order, with problems more typical for peace-keeping operations (e.g.maintaining law and order) than for traditional inter-state warfare.

    There is also a close relationship between the maintenance of public order and legislativeaction. Human rights and the rule of law (indispensable elements in any peace-buildingeffort) demand that the maintenance of public order be based on law. Both an occupyingpower and an international civil administration restoring and maintaining public order facethe question on what legal basis they may arrest, detain and punish persons threatening orbreaking public order and to what extent they may change local legislation for that purpose.

    Similarly, concern for civil life and welfare is not only an important aspect of both peace-building and the maintenance of public order, but perforce involves legislative action.

    While all these issues are interrelated, I shall first discuss legal aspects of the occupyingpowers task of maintaining public order and civil life. Second and more importantly, I shallanalyze how far the legislative powers of an occupying power go under IHL, including forthe purpose of restoring and maintaining public order an