The law of occupation developed in the late nineteenth century alongside evolving concepts of war, sovereignty, and the rights of local populations. The ‘conservationist’ principle of the law of occupation prohibits the occupant from altering local laws and administrative authorities, unless absolute necessity dictates otherwise. The Hague Regulations of 1899 and 1907 framed the internationally enforceable law of occupation that introduced a two-pronged approach: the ‘conservationist’ principle as the primary rule, and exceptions based on ‘necessity.’ The concept of necessity has been subject to much scholarly debate and has been used by occupying powers to justify their actions. The key question remains: what parameters does ‘necessity’ stretch to?
This paper addresses this question through four case studies; Israel’s occupation of Palestine, the Coalition Provisional Authority’s occupation of Iraq, Russia’s occupation of Crimea and parts of Ukraine, and India’s occupation of Kashmir. Each case study analyses the illegality of the occupation, the adherence to the law of occupation, and the extent to which the occupied territory’s rights have been protected. It is clear that the ‘necessity’ clause has facilitated the gains of occupying powers at the expense of the occupied population. While the law of occupation aims to prevent transformative occupations in which the ousted sovereign’s interests are set aside and the occupied population is not protected, this is only possible for short-term occupations. It is not a feasible framework for a prolonged occupation, which requires the occupier to pass laws for the welfare of the occupied population. While it may be an onerous task to determine when the occupied population’s interests are being upheld over the occupier’s, there is still an immense need for an oversight mechanism besides the occupying power itself. Without catering to this new reality of modern-day prolonged occupations, the law of occupation will truly be outdated.
Team: Nimra Mansoor
