Post-Occupation Obligations Under The Law Of Belligerent Occupation?
This dissertation explores the issue of whether international law of belligerent occupation encompasses, or should evolve to encompass, some form of post occupation duties upon a former occupier. The most fundamental question of this dissertation is thus, who bears responsibility under the law of belligerent occupation for the protection of civilians of the formerly occupied zone with respect to public order, security, and essential services, and in particular with respect to the rights and obligations of governance of a territory following the end of occupation, given that the law of belligerent occupation is motivated by both a “civilian protection” principle and a “preserve the sovereignty of the returning sovereign” principle. This legal question arises because of a lack of “fit” between the basic paradigm of occupation underpinning the law of belligerent occupation and situations of occupation (which might be acknowledged by the parties or not) that arise in the contemporary world that are not easily assimilated to the structure of belligerent occupation law. These gaps and poor fit give rise to criticisms of the law of belligerent occupation as being inadequate for addressing the varied situations of occupation that have arisen in the past several decades. The result of the critiques is a call for either other bodies of law to provide for civilian protection in any gap of governance or protection, or else to reform belligerent occupation law, in order to impose duties toward the territory and civilian population, upon the former occupier, even after the occupation has been withdrawn. This dissertation accepts that there are important gaps and lack of fit with the law of belligerent occupation as it stands today. It concludes, however, that the law of belligerent occupation does not create an on-going regime of post occupation duties falling upon the former occupier. To fill in the vacuum, a “transitional post occupation obligation” model is proposed, grounded not in other bodies of law, but in the law of belligerent occupation itself, which should be triggered under certain circumstances when the end of occupation is approaching and gaps in essential governance and civilian protection at issue. The defining element of this model is a transfer of rights and duties of governance from the departing occupier to the returning sovereign, for the protection of the civilian population, rather than a body of legal duties falling upon the former occupier alone.