The Law of Occupation International Law in Japanese Perspective 3

PART II IHLBASED RULES CONCERNING FUNDAMENTAL GUARANTEES FOR INDIVIDUAL PERSONS IN OCCUPIED TERRITORIES Chapter 11: General Principles Governing the Protection of Fundamental Rights in

Th e Law of Occupation

Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law

By

Yutaka Arai-Takahashi

LEIDEN • BOSTON

2009

Library of Congress Cataloging-in-Publication Data

Th e law of occupation : continuity and change of international

humanitarian law, and its interaction with international human rights law / edited by Yutaka Arai-Takahashi.

p cm — (International law in Japanese perspective ; v 11)

Includes bibliographical references and index.

ISBN 978-90-04-16246-4 (hardback : alk paper)

1 Military occupation 2 Humanitarian law 3 Human rights 4 War (International law)

All rights reserved No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher.

Authorization to photocopy items for internal or personal use is granted by Koninklijke

Brill NV provided that the appropriate fees are paid directly to Th e Copyright Clearance Center,

222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA.

Fees are subject to change.

printed in the netherlands

Preface xxvii

Th e List of Abbreviations xxxi

Prolegomenon xxxix

PART I THE GENERAL PRINCIPLES OF THE LAW OF OCCUPATION Chapter 1: Th e Scope of Application of the Law of Occupation 3

1 Introduction 3

2 Th e Meaning of Occupation and the Scope of Application Ratione Materiae of the Law of Occupation 5

2.1 Overview 5

2.2 Eff ective Control 6

2.3 Control of a Territory Beyond the Territorial Boundaries of the Occupying Power 8

2.4 Irrelevance of “Offi cial” Proclamation by de facto Occupying Powers 10

3 Th e Scope of Application Ratione Personae of the Law of Occupation 12

4 Th e Scope of Application Ratione Temporis of the Law of Occupation 16

4.1 Th e Commencement of Occupation 16

4.2 Th e Termination of Occupation 16

4.3 Criteria for Assessing the End of Occupation: Eff ective Handover and Elections 19

5 Th e Rules Concerning Postliminium 24

6 Diff erent Categories of Occupation 26

6.1 Overview 26

6.2 Post-Armistice Occupation 27

6.3 Th e “Mixed Occupation” (Mischbesetzung) 28

6.4 Post-Surrender Occupation 30

6.5 Post-Debellatio Occupation (Occupation based on

Debellatio) 37

6.6 Pacifi c Occupation (Occupatio Pacifi ca) 40

7 Basic Rules on the Law of Belligerent Occupation 42

7.1 Th e Transitional Nature of Occupation 42

7.2 Oath of Obedience, and not Oath of Allegiance 43

7.3 Th e Interdiction of Annexation 44

8 Th e Exclusion of Applicability of the Law of Occupation? 46

8.1 Overview 46

8.2 Th e Relationship between the Legality in Jus ad Bellum and the Applicability of the Law of Occupation 46

8.3 A Brief Examination of the “Missing Reversioner” Th eory 47

9 Conclusion 52

Chapter 2: Sources of the Law of Occupation 55

1 Introduction 55

2 Treaty Law 55

3 Customary International Humanitarian Law 57

4 Th e Fourth Geneva Convention as Customary International Law 59

5 General Principles of International Law 65

5.1 Overview 65

5.2 Th e Principle of Self-Determination 65

5.3 General Principles of International Humanitarian Law and the Martens Clause 68

6 Security Council Resolutions Adopted under Chapter VII of the UN Charter 72

6.1 Overview 72

6.2 Derogability of Security Council Resolutions from the Law of Occupation 72

6.3 Can the Security Council Acting under Chapter VII of the UN Charter Override Obligations under IHL and International Human Rights Law? 79

6.4 Security Council Resolutions Must Abide by Jus Cogens 82

6.5 Th e Relationship between Security Council Resolution 1483 and the Law of Occupation 85

7 Conclusion 89

Chapter 3: Th e Legislative Competence of the Occupying Power under Article 43 of the 1907 Hague Regulations 91

1 Th e Scope of Legislative Power under Article 43 of the 1907 Hague Regulations 91

2 Th e Origin of Article 43 of the 1907 Hague Regulations –

Articles 2 and 3 of the Brussels Declaration of 1874 93

3 Th e Meaning of the Expression “vie publique” 96

4 Th e Meaning of the Words “les lois en viguer” 97

5 Th e Obligation to Restore and Ensure Public Order and Civil Life 98

5.1 Th e Nature of Obligations 98

5.2 Th e Obligations Relating to Public Order 98

5.3 Th e Obligation to Ensure Public Order and Civil Life 99

6 Laws Enacted by “Absent” Sovereign 101

7 Exceptions to Article 43 of the 1907 Hague Regulations 102

7.1 “Empêchement absolu” 102

7.2 Welfare of the Population 106

8 State Practice in Relation to Article 43 of the 1907 Hague Regulations during the Two World Wars 107

9 Abrogation of Fascist Laws under the Necessity Test 109

10 Waiver of Article 43 of the 1907 Hague Regulations by a Subsequent Agreement? 111

11 Conclusion 113

Chapter 4: Th e Legislative Competence of the Occupying Power under the Fourth Geneva Convention 115

1 Introduction 115

2 Article 64 of GCIV and the Necessity Exceptions 116

2.1 Article 64 of GCIV 116

2.2 Drafting Records of Article 64 of GCIV 117

3 Th e Scope of Legislative Power of the Occupant under Article 64 of GCIV 120

3.1 Th ree Elements of Incoherence 120

3.2 Th e Relationship between Article 43 of the 1907 Hague Regulations and Article 64 of GCIV 120

4 Th ree Elements of Necessity under Article 64 of GCIV 123

4.1 Overview 123

4.2 Th e Necessity Test Based on Security Grounds 124

4.3 Th e Necessity of Maintaining Public Order and Civil Life 128

4.4 Th e Necessity of Fulfi lling the Obligations under the Geneva Conventions 132

4.5 Th e Necessity of Fulfi lling Obligations under International Human Rights Law? 135

5 Conclusion 136

Chapter 5: Th e Administrative and Judicial Structures in Occupied

Territory 137

1 Introduction 137

2 Th e Administrative Structures in Occupied Territory 137

2.1 Overview 137

2.2 Th ree Basic Principles 138

2.3 Th e Remoulding of Administrative Structures in Occupied Territory: Exceptions to the Th ree Basic Rules 140

2.4 Introduction of Democratic Governance 142

2.5 Alterations in Boundaries of Occupied Territories 142

2.6 Th e Prohibition of Coercion or Discrimination against Public Offi cials or Judges in Occupied Territory 143

2.7 Removal of Public Offi cials and the Necessity Test 144

2.8 Local Government 144

3 Judicial Structures in Occupied Territory 145

3.1 Administration of Justice 145

3.2 Th e Personal Scope of Jurisdiction in Occupied Territory 146

3.3 Judicial Review of Ultra Vires Acts of the Occupant? 147

4 Occupation Courts 157

4.1 Overview 157

4.2 Occupation Courts under GCIV 162

4.3 Occupation Courts and War Crimes 164

5 Conclusion 166

Chapter 6: Regulations of the Economy in Occupied Territory 167

1 Introduction: Th e General Principle of Good Administration of the Economy 167

2 Investments in Occupied Territory 169

3 Public Finance 171

3.1 Taxes 171

3.2 “Other Money Contributions” 173

3.3 Permissibility of Introducing New Taxes 175

3.4 Immunity of Occupation Authorities from Local Tax 181

4 Conclusion 182

Chapter 7: Th e Prohibition of the Destruction of Enemy Property in Occupied Territory 183

1 Introduction 183

2 A Scorched Earth Policy 184

3 Destruction of Property and the Military Necessity Test 186

4 Extensive Destruction and Appropriation of Property as a Grave Breach of GCIV 191

5 Conclusion 192

Chapter 8: Th e Prohibition of the Seizure and Use of Public

Property in Occupied Territory 195

1 Introduction: Th e Distinction between Private and Public Property 195

2 State Property 196

2.1 Overview 196

2.2 Immovable State Property (Land and Buildings) of a Civilian Character 196

2.3 Immovable State Property (Land and Buildings) of a Military Nature 198

2.4 Movable State Property 199

2.5 Debt 201

3 Special Categories of Property 205

3.1 Overview 205

3.2 Property of Municipalities 206

3.3 Civilian Hospitals 206

3.4 Property of Civil Defence 207

3.5 Property Permanently Assigned to Civil Defence Organisations under Military Command 208

4 Exploitation of Natural Resources 209

4.1 General Rules 209

4.2 Th e Impact of the Principle of Self-Determination of Peoples upon the Rules on Exploitation of Natural Resources in Occupied Territory 215

5 Conclusion 216

Chapter 9: Private Property in Occupied Territory 217

1 Introduction 217

2 Th e Prohibition of Pillage 218

3 Temporary Use of Immovable Private Property 218

3.1 Overview 218

3.2 Justifi cation for Requisitioning Private Immovable Property for Temporary Use: “Needs of the Army of Occupation” or “Imperative Military Necessity”? 222

4 Movable Private Property 226

4.1 Four Categories of Private Movable Property 226

4.2 Private Movables Essentially of a Non-Military Nature 226

4.3 Appliances of Communication or Transportation, Depots of Arms and Munitions de Guerre 230

4.4 Submarine Cables Linking an Occupied Territory with a Neutral Territory 234

4.5 Works of Art and Science 234

2 Th e Obligation to Assist, Preserve and Notify 243

3 Th e Principle Th at All Seizure or Destruction of, or Wilful

Damage Done to, Institutions Dedicated to Religion, Charity,

Education, the Arts and Sciences, Historic Monuments and

Works of Art and Science is Prohibited 245

4 Th e Obligation to Prohibit, Prevent and Stop any Form of

Th eft, Pillage or Misappropriation of, and Any Acts of

Vandalism Directed against, Cultural Property of Great

Importance to the Cultural Heritage of Every People 246

5 Th e Prohibition on Requisitioning Cultural Property in

Occupied Territory 247

6 Th e Obligation to Prohibit and Prevent Illicit Export of

Cultural Property from Occupied Territory 248

7 Th e Obligation to Return Cultural Property Exported from

Occupied Territory 249

8 Th e Obligation to Prohibit or Prevent Archaeological

Excavations in Occupied Territory 251

9 Th e Obligations to Prohibit or Prevent the Alterations to (or the Change of Use of ) Cultural Property in Occupied Territory 253

10 Th e Prohibition of Reprisal against Cultural Property 253

11 Th e Protection of Cultural Property in Occupied Territory and

War Crimes 25411.1 Overview 25411.2 General Remarks on the War Crimes Based on Seizure of, Destruction of, or Wilful Damage Done to, Cultural

Property in General 25511.3 War Crimes of Seizure of Cultural Property 25511.4 War Crimes Based on Extensive Destruction and

Appropriation of Cultural Property in Occupied

Territory 25611.5 Criminalisation under the 1999 Second Hague

Protocol 256

12 Conclusion 257

PART II IHLBASED RULES CONCERNING FUNDAMENTAL

GUARANTEES FOR INDIVIDUAL PERSONS IN

OCCUPIED TERRITORIES

Chapter 11: General Principles Governing the Protection of

Fundamental Rights in International Humanitarian Law 261

1 Introduction 261

2 Conferral of Rights upon Individual Persons under IHL Treaty-Based Rules 262

3 General Principles of IHL Relating to the Protection of Rights of Individual Persons 264

3.1 Horizontal Eff ects – Positive Obligations 264

3.2 State Responsibility for Violations of Rights of Civilians in Occupied Territory 265

3.3 Th e Right of Individual Persons to Claim Reparations 265

4 Th e Fourth Geneva Convention and the Protection of Rights of Individual Persons 268

4.1 Overview 268

4.2 Th e Rights Guaranteed under Part III of GCIV 269

5 General Principles of the Fourth Geneva Convention Relating to the Protection of Fundamental Rights 270

5.1 Th ree “Minimum Core Guarantees” Recognised under Article 27 of GCIV 270

5.2 Th e Respect for Lives, Honour, Family Rights, Religious Convictions and Practices, and Manners and Customs 271

5.3 Th e Right to Equality and to Non-Discrimination 272

5.4 Th e Inviolability of the Fundamental Guarantees of Protected Persons in Occupied Territory 273

5.5 Measures of Control and Security 275

6 Derogation under Article 5 of GCIV 275

6.1 Overview 275

6.2 Derogation from Rights of Protected Persons in Occupied Territory 276

6.3 Two Non-Derogable Rights Expressly Mentioned in Article 5 of GCIV 277

7 Th e Specifi c Elaborations of the Rights of Humane Treatment 278

7.1 General Remarks 278

7.2 Th e Prohibition of Physical and Moral Coercion 279

7.3 Th e Prohibition of Measures Causing Physical Suff ering or Extermination 280

7.3.1 Overview 280

7.3.2 Drafting Records 280

7.3.3 Ramifi cations 283

7.4 Th e Prohibition of “Measures of Intimidation or of Terrorism” 284

7.5 Th e Prohibition of Belligerent Reprisals 285

7.5.1 Th e Prohibition of Belligerent Reprisals against Protected Persons Who Fall in the Hands of the Adversary 285

7.5.2 Belligerent Reprisals against Civilians of an Adverse Party During the Conduct of Hostilities 285

7.6 Th e Prohibition on Taking Individual Persons as Hostages 289

7.6.1 Overview 289

7.6.2 Historical Evolution of the Prohibition on Taking Hostages 291

7.6.3 Criminalisation of Hostage-Taking since 1945 293

7.6.4 Th e Scope of Application Ratione Personae of the Victims of Hostage-Taking 295

8 Conclusion 296

Chapter 12: Hostilities in Occupied Territory, Protected Persons, and Participants in Hostilities 297

1 Th e Th reshold for Determining Hostilities in Occupied Territory 297

1.1 Th e Resumption of Hostilities or the Outbreak of New Hostilities 297

1.2 Th e Resumption of Hostilities in Occupied Territory 299

1.3 Outbreak of Non-International Armed Confl ict in Occupied Territory 300

1.4 Hostilities between the Occupying Power and the Armed Groups Who Are Not Resistance Movements within the Meaning of Article 4A(2) of GCIII 300

1.5 Cross-Border Hostilities between a State and Non-State Actors as Non-International Armed Confl icts 301

2 Th e Defi nition of Protected Persons and Civilians 304

2.1 Protected Persons under Article 4 of GCIV 304

2.2 Deprivation of Protected Persons Status? 307

2.3 Th e Concept of Civilians under API 307

3 “Combatants” in Occupied Territories 308

3.1 Members of Lawful Combatants of International Armed Confl ict in Occupied Territory 308

3.2 Participants in Non-International Armed Confl ict in

Occupied Territory 309

3.2.1 Th ree Categories of Individual Persons Aff ected by Non-International Armed Confl ict in Occupied Territory 309

3.2.2 Rebels and the “Revolving Door” Scenario 310

3.2.3 Th e Distinction between Current and Former Members of Armed Forces of the Occupied State 311

3.2.4 Classifi cation of Foreign Infi ltrators as Unprivileged Belligerents 312

4 Unprivileged Belligerents in Occupied Territory 313

4.1 Overview 313

4.2 Th ree Strands of Argument on the Scope of Protection of GCIV in Relation to Unprivileged Belligerents 314

5 Th e Concept of Direct Participation in Hostilities 319

5.1 Overview 319

5.2 Th e Temporal Element “For Such Time” 320

5.3 Direct Participation or Indirect Participation? 321

6 Conclusion 325

Chapter 13: Specifi cally Prohibited Acts in Occupied Territory 327

1 Introduction 327

2 Deportation or Forcible Transfer of Protected Persons 327

2.1 Overview 327

2.2 Th e General Scope of Application Ratione Personae of Article 49(1) of GCIV 330

2.3 Deportation of Infi ltrators of Foreign Nationality 332

2.4 Controversy over the Customary Law Status of Article 49(1) of GCIV 333

2.5 Th e Collective or Individual Deportation? 337

2.6 Forcible Transfer of Civilians within Occupied Territory 339

2.7 Th e Question of Nationality and the Internal or External Nature of Deportation/Transfer 340

2.8 Unlawful Deportation or Transfer of Protected Persons as a Grave Breach Form of War Crimes 340

3 Evacuation 342

3.1 Overview 342

3.2 Derogation from Article 49(1) of GCIV? 343

3.3 Additional Requirements concerning Evacuation under API 344

4 Free Movement of Protected Persons 345

5 Deportation or Transfer by the Occupying Power of Part of its

Own Population into the Occupied Territory 346

5.1 Overview 346

5.2 Is Coercion an Element of Transfer of the Civilians of the Occupant into Occupied Territory? 347

5.3 Th e Distinction between Transfer pursuant to a Policy and Voluntary Settlement? 347

5.4 Indirect Measure of Transfer? 349

5.5 Transfer by the Occupying Power of its own Population into Occupied Territory as a War Crime 350

6 Prohibition of Forced Labour 350

7 Conclusion 353

Chapter 14: Economic, Social and Cultural Rights in Occupied Territory 355

1 Introduction 355

2 Th e Right to Adequate Working Conditions and the Prohibition on Causing Unemployment 356

3 Rights to Food and Medical Supplies, and Other Humanitarian Relief Supplies 356

3.1 Obligations to Furnish Humanitarian Relief Supplies 356

3.2 Free Passage of Consignments 357

3.3 Duties on Transit States to Allow Free Passage of Relief Consignments 359

4 Th e Requirement of Respecting and Protecting Humanitarian Relief Personnel, Civil Defence Organisations, Medical Personnel, Civilian Hospitals and Medical Units 360

4.1 Overview 360

4.2 Th e Requirement of Respecting and Protecting Humanitarian Relief Personnel 360

4.3 Th e Duty to Respect and Protect Civil Defence Organisations 362

4.4 Th e Requirement of Respecting and Protecting Medical Personnel 363

4.5 Th e Requirement of Respecting and Protecting Civilian Hospitals and Medical Units 364

5 Th e Protection of Public Health and Hygiene 365

6 Th e Prohibition on Requisitioning Relief Supplies, and Immovable Property Belonging to Relief Societies etc 365

6.1 Th e Prohibition on Requisitioning Relief Supplies 365

6.2 Diversion of Relief Consignments? 366

6.3 Requisition of Civilian Hospitals 367

6.4 Requisition of Shelters 367

6.5 Th e Prohibition on Requisitioning, or Diverging from Th eir Proper Use, Building or Matériel Belonging to, or Used by, Civil Defence Organisations 368

7 Rationales for Applying International Human Rights Law of Economic, Social and Cultural Nature in Occupied Territories 369

8 Derogation from Economic, Social and Cultural Rights 371

9 Conclusion 373

Chapter 15: IHL-Based Rights of Women and Children in Occupied Territories 375

1 Introduction 375

2 IHL Treaty-Based Rights of Women in Occupied Territory 375

2.1 Overview 375

2.2 General Safeguards of the Rights of Women under IHL 376

2.3 Th e Rights of Women Derived from the Obligations to Respect and Protect 377

2.4 Th e Right of Women Deprived of Liberty to be Held in Quarters Separate from Men 378

2.5 Th e Responsibility of the Japanese Imperial Army for Sex Slavery (so-called “Comfort Women”) before and during World War II 379

2.6 Fragility and Ineff ectiveness of the Gendered Rubrics of IHL 383

3 Rights of Children in Occupied Territory 384

3.1 Overview 384

3.2 Children’s Right to Education in Occupied Territory 385

3.3 Th e Right of Children Who are Deprived of Th eir Liberty to be Held in Quarters Separate from Adults 386

3.4 Th e Prohibition on Recruiting Children in Occupied Territory 387

3.5 Recruitment of Children as a War Crime 389

4 Conclusion 391

Chapter 16: Other Specifi c IHL-Based Rights of Individual Persons in Occupied Territory 393

1 Introduction 393

2 Respect for the Convictions and Religious Practices of Civilians 393

3 Th e Right to Apply to Protecting Powers and to the Red Cross or to Other Humanitarian Organisations 395

4 Conclusion 397

PART III CONVERGENCE AND INTERACTION BETWEEN

INTERNATIONAL HUMANITARIAN LAW AND

INTERNATIONAL HUMAN RIGHTS LAW

Chapter 17: Th e Relationship between International Human Rights

Law and International Humanitarian Law in Occupied Territories 401

1 Th e Applicability of Human Rights during Armed Confl ict 401

2 Fundamental Diff erences between International Human Rights Law and IHL 407

3 Th e Complementary Relationship between IHL and International Human Rights Law 408

4 Th e Th reshold of Derogation Clauses under International Human Rights Law and the Applicability of Common Article 3 411

5 Advantage of Relying on IHL Rules in Assessing International Human Rights Law 411

6 IHL as Lex Specialis 414

6.1 Overview 414

6.2 Brief Examinations of the Lex Specialis Rule 415

6.3 Two Requirements of the Lex Specialis Rule 416

6.4 Two Contexts in Which the Application of the Lex Specialis Rule is Contemplated 417

6.5 Limit of the Lex Specialis Rule 418

6.6 Th e Lex Specialis Rule and the Interplay between IHL and International Human Rights Law 419

6.7 Circumstances in Which the Lex Specialis Rule Should be Excluded to Allow the Application of International Human Rights Law 422

7 Th e Methodology of Applying IHL Rules by Human Rights Treaty Bodies 425

7.1 Overview 425

7.2 Direct Application of IHL by Human Rights Treaty Bodies 425

7.3 Indirect Application of IHL by Human Rights Treaty Bodies 429

8 Th e Methodology of Expanding the Scope of Application of International Human Rights Law in Situations of Occupation and Armed Confl ict 429

9 Kretzmer’s Mixed Model 430

10 Fundamental Diff erences in the Underlying Rationales of IHL and International Human Rights Law Revisited 433

11 Conclusion 435

Chapter 18: Th e Eff ective Convergence between IHL and

International Human Rights Law in Guaranteeing the Right to

Life in Situations of “Volatile Occupation” 439

1 Introduction 439

2 Guidelines Derived from the Basic Principles on the Use of Force and Firearms by Law Enforcement Offi cials 441

3 Criteria for Assessing the Legality of Targeted Killing in Occupied Territory 442

4 Proportionality Assessment of the Right to Life in Situations of Hostilities 443

4.1 Modalities of Proportionality in Assessing the Right to Life in the Context of International Human Rights Law 443

4.2 Th e Approach of the European Court of Human Rights: the Precautionary Principle as Part of Proportionality 444

5 Th e Methodology of Incorporating Subtests of Proportionality Developed in the Context of International Human Rights Law into the Appraisal of Conduct of Hostilities 446

5.1 Overview 446

5.2 Th e Less Restrictive Alternative (LRA) Doctrine 446

5.3 Th e Applicability or not of the LRA Subtest to the Assessment of Conduct of Hostilities 447

5.4 Proportionality Strict Sensu 448

6 Procedural Requirements for Targeted Killings 450

6.1 Overview 450

6.2 Ex ante Procedural Requirements 450

6.3 Post Factum Procedural Requirements 451

6.4 Th e Duty of Eff ective Inquiries into Circumstances of Killing 452

6.5 Th e Duty to Prosecute and Punish Responsible Soldiers and Th eir Superiors 453

7 Conclusion 455

Chapter 19: Th e Expanding Catalogue of Human Rights of Non-Derogable Nature 459

1 Introduction 459

2 Article 4 of the ICCPR 460

2.1 Overview 460

2.2 Th e Requirement of a Proclamation of a State of Emergency 461

2.3 Th e Requirement of Immediate Notifi cation 461

2.4 Existence of a State of Emergency 462

2.5 Consistency with Other Obligations under International Law 463

2.6 Th e Prohibition of Discrimination 464

2.7 Th e Principle of Proportionality 465

2.8 Th e List of Non-Derogable Rights Expressly Provided under Article 4 of the ICCPR 466

3 General Comment No 29 of the Human Rights Committee 466

3.1 Overview 466

3.2 Th e Legal Basis for the Human Rights Committee to Issue General Comment No 29 467

3.3 Normative Status of General Comment No 29 468

4 Th e Expanded Catalogue of Non-Derogable Rights under General Comment No 29 468

4.1 General Remarks 468

4.2 Th e Right to Humane Treatment 471

4.3 Th e Prohibition on Taking Hostages, Abductions or Unacknowledged Detention 473

4.3.1 Overview 473

4.3.2 Abduction 473

4.4 Th e Rights of Persons Belonging to Minorities 474

4.5 Th e Prohibition of Deportation or Forcible Transfer of Populations 476

4.6 Th e Prohibition of Propaganda for War and of Advocacy of National, Racial, or Religious Hatred Th at Would Constitute Incitement to Discrimination, Hostility or Violence 476

5 Other Non-Derogable Rights Identifi ed by the Human Rights Committee 478

5.1 Th e Right to an Eff ective Remedy under Article 2(3)(a) of the ICCPR 478

5.2 Judicial Guarantees in Relation to Non-Derogable Rights 479

5.3 Core Elements of Fair Trial Guarantees 480

6 Conclusion 481

Chapter 20: Procedural Safeguards and Fair Trial Guarantees in Occupied Territory 483

1 Introduction 483

2 Assigned Residence and Internment/Administrative Detention 483

2.1 Th e Legal Basis for Depriving Persons of Liberty in Occupied Territory 483

2.2 Th e Legal Basis for Procedural Safeguards of Persons Deprived of Liberty in Occupied Territory 485

2.3 Th e Limited Scope of the Procedural Safeguards for Internees/Administrative Detainees 486

2.4 Procedural Safeguards for Persons Other than Protected

Persons in Occupied Territory 4872.5 Th e Analogous Application of Procedural Safeguards to

Persons Captured in the UN-Administered Territory 488

3 General Principles Governing Internment/Administrative

Detention of Individual Persons in Occupied Territory 4893.1 Th e Principle Th at Internment or Administrative Detention Must be Carried out in Accordance with the Principle of

Legality 4893.2 Th e Principle Th at Internment or Administrative Detention

is an Exceptional Measure 4913.3 Th e Principle Th at Internment or Administrative Detention Must Not be an Alternative to Criminal Proceedings 492

4 Procedural Safeguards Th at are Expressly Recognised in IHL

Treaties 4944.1 Overview 4944.2 Th e Procedural Safeguards Th at are Largely Infl uenced by

International Human Rights Law 4944.2.1 Th e Right of Interned or Administratively Detained

Persons to be Informed Promptly, in a Language

Th ey Understand, of the Reasons for such

Deprivation of Liberty 4944.2.2 Th e Right to Contest Measures of Internment or

Administrative Detention 4954.2.3 Th e Right to Periodic Review 4984.2.4 Th e Application of Judicial Review in Occupied

Territory 5004.2.5 Th e Right to Release with the Minimum Delay

Possible 5014.2.6 Th e Prohibition on Administrative Detention of

Indefi nite Nature 5024.3 Th e Procedural Safeguards Th at Are Specifi c to IHL 5044.3.1 Immunity from Arrest, Prosecution and Conviction

for Acts Committed, or for Opinions Expressed,

before the Occupation 5044.3.2 Th e Requirement Th at Persons Interned or

Administratively Detained Must be Registered and

Held in a Recognised Place of Internment or

Administrative Detention 504

5 Procedural Safeguards Th at Need to be Supplemented by the

Practice of International Human Rights Law 5055.1 Th e Right to Legal Assistance 5055.2 Th e Right to Attend at the Process of Review 506

6 Fair Trial Guarantees of Accused Persons in Occupied Territory – the Interplay between IHL and International Human Rights

Law Disaggregated 5066.1 Overview 5066.2 Th e Legal Basis for Fair Trial Guarantees under IHL and

International Human Rights Law 507

7 Th e Normative Status, and the Weight of Evidence, of the

Documents and Case-Law of International Human Rights Law

in Ascertaining Customary Norms concerning Fair Trial

Guarantees 5107.1 Th e Structure of Analysis 5107.2 Th e First Step: the Identifi cation of the Customary Law

Status of Fair Trial Guarantees Contained in IHL Treaty

Provisions 5107.2.1 Overview 5107.2.2 Th e Customary Law Status of the Elements of the

Rights of the Accused Th at Are Safeguarded in Article 75(4) API 5117.2.3 Additional Elements of the Rights of the Accused,

Which Can be Derived from Article 75(4) API, and the Ascertainment of Corresponding Customary Rules 5127.3 Th e Second Step: Ascertaining the Non-Derogability of

Corresponding Rules Embodied under Human Rights

Treaties 5147.4 Th e Th ird Step: Th e Methodology of Recruiting Specifi c

Elements and Principles from Documents and the Case-Law

of the Monitoring Bodies of Human Rights Treaties 5167.4.1 Overview 5167.4.2 Th e Normative Signifi cance of the Case-Law of the

Monitoring Bodies of Human Rights Treaties in Ascertaining Customary International Law 5177.4.3 Th e Normative Signifi cance of Documents of the

Monitoring Bodies of Human Rights Treaties in Ascertaining Customary International Law 5197.4.4 Is it Possible to Read Additional Non-Derogable

Elements of Fair Trial Guarantees in the Human Rights Committee’s General Comment No 29? 520

8 Th e Elements of the Rights of the Accused, Which are

Expressly Contained in Article 75(4) API 5208.1 Fundamental Principles of Criminal Law 5208.2 Th e Right to be Presumed Innocent 521

8.3 Th e Right to be Informed of the Nature and the Cause

of Accusation 5228.4 Th e Right to Trial by an Independent, Impartial and

Regularly Constituted Court 5238.4.1 Overview 5238.4.2 Non-Derogability under the Practice of

International Human Rights Law 5248.4.3 Th e Role of International Human Rights Law in

Complementing Procedural Guarantees of Occupation Courts 5258.4.4 Th e Trial of Civilians by Military Courts 5268.4.5 Th e Trial of Unprivileged Belligerents in Occupied Territory 5278.5 Th e Right of the Accused to be Present at the Trial 5298.6 Th e Right to Examine Witnesses or the Right to Have

Witnesses Examined 5308.7 Th e Right of the Accused Not to be Compelled to Testify against Him/Herself and the Protection against Coerced

Confessions 5318.8 Th e Right of the Convicted Persons to be Informed of

Available Remedies and of their Time-Limits 5328.9. Non bis in idem (Freedom from Double Jeopardy) 532

8.10 Th e Right to Public Proceedings 534

9 Th e Elements of the Rights of the Accused, Which are Implied from the General Terms under Article 75(4) API 5359.1 Th e Rights Relating to Means of Defence 5359.1.1 Overview 5359.1.2 Th e Right to Defend Oneself or to be Assisted by

a Lawyer of One’s Own Choice 5379.1.3 Th e Right to Free Legal Assistance 5389.1.4 Th e Right to Suffi cient Time and Facilities to

Prepare the Defence 5399.1.5 Th e Right of the Accused to Communicate Freely with Counsel 5409.1.6 Th e Right to the Assistance of an Interpreter or

Translator 5409.2 Th e Right to Trial without Undue Delay 5419.3 Th e Right to Remain Silent 5439.4 Th e Right of Convicted Persons to Appeal 543

10 Conclusion 545

PART IVEVOLVING ISSUES OF THE LAW OF OCCUPATION

Chapter 21: Th e Extraterritorial Application of International Human

Rights Law in Occupied Territory 551

1 Introduction: Extraterritorial Applicability of International

Human Rights Law in Occupied Territory 551

2 Th e Meaning of the Term “within its territory and subject to its

jurisdiction” under Article 2(1) ICCPR 5532.1 Travaux Préparatoires of Article 2(1) ICCPR 553

2.2 Th e Approach of the Human Rights Committee 5572.3 Th e Human Rights Committee and the “Subsequent

Practice” of States Parties 559

3 Th e Meaning of the Term “within their jurisdiction” under

Article 1 ECHR 5593.1. Travaux Préparatoires of the ECHR 559

3.2 Th e Approach of the European Court of Human Rights in

Relation to the Meaning of Jurisdiction under Article 1

ECHR 560

4 Doctrinal Discourse on the Meaning of the Words “within its

territory and subject to its jurisdiction” 562

5 Th e Circumstances in Which the Extraterritorial Application of

International Human Rights Law Can be Envisaged 5645.1 Overview 5645.2 Cases Where a State Exercises Control over a Territory of

Another State 5655.3 Bankovic and the Espace Juridique Doctrine 569

5.4 Cases Where a State Exercises Control, Power or Authority

over Individual Persons 5725.5 Cases Where a State Exercises Control over the Infl iction

of the Alleged Violation 579

6 Conclusion 581

Chapter 22: Th e Applicability of the Law of Occupation to UN

Peace Support Operations and UN Post-Confl ict Administration 583

1 Introduction 583

2 Th e Applicability of Customary IHL to the UN Peacekeeping

Forces 585

3 Can the UN Become Parties to IHL Treaties? 587

4 Th e Practice of the United Nations and the UN

Secretary-General’s Bulletin on Observance by United Nations Forces of

International Humanitarian Law 589

5 Other Indices for the Applicability of IHL Rules to UN

Forces 593

6 Th e Distinction between Enforcement Action and

Non-Enforcement Action in Assessing the Applicability of

IHL 594

7 Consent as a Determining Factor? 597

8 Th e Convention on the Safety of the United Nations and

Associated Personnel 599

9 Th e Th reshold for Determining Whether the UN Forces Have

Become Parties to an Armed Confl ict 602

10 Th e UN Post-Confl ict Administration and the Law of

Occupation 60210.1 Th e UN Practice Relating to Post-Confl ict

Administration 60210.2 Th e Appraisal of the Applicability of the Law of

Occupation to the UN Administration 604

11 Conclusion 605

PART VTHEORETICAL APPRAISAL

Chapter 23: Th e Nature of Customary International Humanitarian

Law Revisited 611

1 Introduction 611

2 Inquiries into the Formation of Customary International Law in General 6122.1 Two Constituent Elements: State Practice and Opinio

Juris 612

2.2 Some Problems Relating to State Practice 6132.3 Can Verbal Acts Constitute Practice Free of a Specifi c

Normative Belief? 6132.4 Some Problems Relating to Opinio Juris 615

2.5 Subjective Elements of State Practice, Which are Indicative

of Opinio Juris 618

3 Methodology of Ascertaining Customary IHL 6203.1 Inductive Approach 6203.2 Deductive Approach 621

4 Th e Relationship between a Treaty-based Norm and Customary Law 6224.1 Th e Implications of the North Sea Continental Shelf Cases

Revisited 622

4.2 Th e Requirement of “a very widespread and representative

participation in the convention” 6244.3 Critical Appraisal of the Relationship between Treaty-Based Norms and Customary Law 625

5 “Modern” vs “Traditional” Understanding of the Formation of

Customary International Law 6285.1 Overview 6285.2 Traditional Customs 6295.3 Modern Understanding of Customs 6305.4 Fidler’s Th ree Perspectives of Evaluating Modern

Customs 6315.5 Descriptive Accuracy and Normative Appeal Revisited 6355.6 Modern Customs Based on Deduction from Moral

Substance 638

6 Apology and Utopia: Dealing with Koskenniemi’s Critique of

Legal Argumentations 6416.1 Overview 6416.2 Traditional Customs and Apology 6436.3 Modern Customs and Utopia 644

7 Evaluations of Koskenniemi’s Argumentation 6457.1 Overview 6457.2 Beckett’s Proposal for a “Virtual Sovereign” and the

Refl exive Process of Custom Formation 645

8 Dworkin’s Interpretative Th eory 647

9 Th e Sliding Scale Conceptualisation of Custom 649

10 Anthea Roberts’ Proposal to Balance Fit and Substance in

Rawls’ “Refl ective Methodology” 653

11 Conclusion 655

Chapter 24: Identifying Customary IHL in Occupied Territories on

the Basis of its Interplay with Customary International Human

Rights Law 657

1 Introduction 657

2 Th e Proposed Framework of Customary IHL Relating to

Fundamental Guarantees in Occupied Territories 657

3 Th e Process of Ascertaining Customary IHL in the Interaction

with Customary International Human Rights Law 659

4 Distinct Variables in the Context of the Law of Occupation 6614.1 Overview 6614.2 Th e Underlying Concept of Military Necessity 661

4.3 Shifting Nature of Occupied Territories: Do Areas Remain

Occupied Territories Subject to Law Enforcement, or

Become Subject to Rules of Conduct of Warfare? 6624.4 Implications of Individual Criminal Responsibility 663

5 Conclusion 666

Table of Case-Law 669Table of Treaties and Other Major International Instruments 703Bibliography 709Index 741

2003 However, I decided to focus on the analysis of the evolution of the laws

of occupation, because I felt that the laws of occupation provided a very useful basis for ascertaining the interaction and dialectical relationship between IHL and international human rights law Since the latter half of the twentieth century, the fantastic development of international human rights law has made considerable impact upon the laws of occupation Th is process has often been facilitated by the malleable nature of the laws of occupation, which have proved instrumental

in accommodating evolving standards of international human rights law Much of the research undertaken for this book is the product of research carried out at the libraries of the International Committee of the Red Cross (ICRC) and the Graduate Institute of International Studies (HEI or the current Graduate Institute of International and Development Studies) in Geneva In the academic year 2005–2006, I was a visiting researcher at the Centre Universitaire

du Droit International Humanitaire (CUDIH or the current Geneva Academy

of International Humanitarian Law and Human Rights) in Geneva I am ticularly indebted to Profs Louise Doswald-Beck, Marco Sassòli and Robert Kolb, and Ms Pauline Cernaix At the same time, intellectual discussions that

par-I had with legal advisors of the par-ICRC proved a constant source of inspiration

I am greatly thankful to them, in particular Antoine Bouvier, Knut Dörmann, Cordula Dröge, Eve La Haye, Jean-Marie Henckaerts, Jelena Pejic, and Sylvain Vité Valuable research assistance has been provided by superb librarians work-ing at the ICRC’s Library and Research Service, and the Archive Th ey have demonstrated an exceptional degree of patience, effi ciency and eff ectiveness, while creating a welcoming milieu ideal for independent research My special thanks go to Fabrizio Bensi, Laurence Bozetto, Dominique Callier (Deputy head of the Library and Research Service), Marie Fuselier (Head of the Library and Research Service), Michèle Huang, Isabelle Kronegg, Mara Meriboute, Sophie Rondags, and Véronique Ziegenhagen I apologise for not being able to include all the individual names of the ICRC librarians to whom I owe much

I owe much Special thanks also go to the librarians at the HEI Library, who have always been helpful in fi nding materials and allowed me to use internet access during my stay in Geneva.

I would also like to thank the staff members at the British Library, the Library

of the Institute of Advanced Legal Studies (London), the Swiss Federal Archive (Bern), and the Templemen Library of the University of Kent (Canterbury)

Th e research carried out at these institutions was signifi cant in fi lling gaps left

by my earlier drafts

Mention must also be made of my friends and colleagues at the Law School

of the University of Kent at Canterbury and Brussels, including (but not limited to) Sarah Carter, Diane Raper, Mark Dean, Emily Haslam, Didi Herman, Sian Lewis-Anthony, Gbenga Oduntan, Kasim Shiekh, Wade Mansell, Harm Schepel and John Wightman Th ey have successfully made our critical law school intel-lectually engaged and inspiring, and transforming its branch at Brussels (Uni-versity of Kent at Brussels) into a fl ourishing, international school as it is now

Th e administrative staff members at KLS and UKB have always been warm and helpful in facilitating my research project Special thanks must also go to Diane Sankey, who has provided a valuable and highly effi cient aid in correcting my English expression of the earlier draft Nevertheless, any errors or inaccuracies remain entirely my own responsibility

I am especially grateful to the British Academy, which granted me research grants that allowed me to carry out research on the travaux préparatoires of the

Geneva Conventions 1949 at the ICRC archive and the Swiss Federal Archive in

2005 Th is has borne fruit as Chapters 1, 2 and 12 Equally, the UK’s Arts and Humanity Research Council (AHRC) generously provided me with a research fellowship that enabled me to “buy out” one academic term following my sab-batical leave from the Kent Law School in 2006 Th is allowed me successfully

to complete the fi rst draft of this book by the end of 2006 In particular, I was able to fi nalise the theoretical part dealing with the evolution of customary inter-national humanitarian law (Part V: Chapters 23 and 24) Without the AHRC’s generous fi nancial assistance, this book project would have been unfeasible In this respect, I am grateful to Didi Herman at Kent Law School and Phil Ward

at the Research Offi ce of the University of Kent for their eff ective support and advice, without which I would not have been able to obtain the funding from the British Academy and the AHRC

Special thanks must also go to Profs James Crawford (Univ of Cambridge) and Yuji Iwasawa (Univ of Tokyo) for their steadfast encouragement and support

of this project Without their guidance, the end result of the research project would have been precarious Th ey have helped me steer clear of “shipwreck” that I might have encountered in this project I am grateful to them for their constructive criticisms and suggestions that have improved upon the earlier drafts

of this book Th anks are also due to Birgitta Poelmans, Peter Buschman and

Ingeborg van der Laan for leading my manuscript to its publication through their tireless and effi cient support.

Last but not least, I am most thankful and truly indebted to my wonderful wife, Dr Mamiko Yokoi, for her constant love, encouragement, support and unfailing patience My appreciation is all the greater not least because while be-ing pregnant, she has energetically committed herself to research and our family

Th is book is dedicated to her, and to our three children, Maya-Asuka, Kaya and Kéiya, as well as to the memory of the Chinese and other nationals who were victims of Japan’s brutal aggression, occupation, imperialism and colonialism between 1931–1945

Th e List of Abbreviations

A Publications of the European Court of Human Rights, Judgments

and Decisions, Series A

AD Annual Digest; Annual Digest of Public International Law Cases

(Vols 1–11); Annual Digest and Reports of Public International Law Cases (Vols 12–16); now renamed ILR: International Law Reports, Vols 17–)

AfCHPR African Charter on Human and Peoples’ Rights

AfCmHPR African Commission on Human and Peoples’ RightsAfJICL African Journal of International and Comparative Law

AfYbkIL African Yearbook of International Law

AJIL American Journal of International Law

Am.Pol.Sci.Rev American Political Science Review

APs Additional Protocols (Geneva Protocols Additional to the

Geneva Conventions of 1949)API Additional Protocol I (the 1977 Geneva Protocol I Addi-

tional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Confl ict)

APII Additional Protocol II (the 1977 Geneva Protocol II

Addi-tional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Confl ict)

ASIL Proc American Society of International Law, Proceedings of the

An-nual Meeting

Austl YbkIL Australian Yearbook of International Law

BFSP British and Foreign State Papers

BGH Bundesgerichtshof: Germany, Federal Court of JusticeBVerfGE Die Entscheidungen des Bundesverfassungsgerichts: decisions of

the German Constitutional Court

BYIL British Yearbook of International Law

Cal W Int’l L.J Californian Western International Law Journal

Can YbkIL Canadian Yearbook of International Law

CDDH Conférence diplomatique sur la réaffi rmation et le

developpement du droit international humanitaire applicable dans les confl its armés

CEDAW Convention on the Elimination of All Forms of

Dis-crimination against WomenChicago JIL Chicago Journal of International Law

Colum JTL Columbia Journal of Transnational Law

Consol T.S Consolidated Treaty Series

CUDIH Centre Universitaire du Droit International

Humani-taire, Univ of Geneva (University Centre for tional Humanitarian Law: UCIHL), renamed Geneva

Interna-Academy of International Humanitarian Law and Human Rights

Dalloz, Rec pér Dalloz Recueil périodique et critique de jurisprudence, de

legislation et de doctrine (Dalloz et Sirey Recueil périodique

de doctrine, de jurisprudence et de legislation (1955–)

Human Rights

ENMOD Convention UN Convention on the Prohibition of Military or

Any Other Hostile Use of Environmental Modifi cation Techniques

ESC rights economic, social and cultural rights

Final Record Final Record of the Diplomatic Conference of Geneva of

1949

FM 27–10 United States Army’s Field Manual 27–10 Th e Law of

Land Warfare

Fordham L.Rev Fordham Law Review

Ga.J.Int’l&Comp.L Georgia Journal of International and

Compara-tive Law

Ameliora-tion of the CondiAmeliora-tion of the Wounded and Sick in Armed Forces in the Field

Ameliora-tion of the CondiAmeliora-tion of the Wounded, Sick and Shipwrecked Members of Armed Forces

at Sea

Treatment of Prisoners of War

Protection of Civilian Persons in Time of War

Geo Int’l Envtl L Rev Georgetown International Environmental Law

Review

IACmHR Inter-American Commission on Human Rights

ICC Statute (or Rome Statute) Rome Statute of the International Criminal

Court

Rights

and Cultural Rights

ICRC’s Commentary to API ICRC, Commentary on the Additional Protocols

of 12 August 1949 (edited by Y Sandoz,

C Swinarski and B Zimmermann), (Geneva/the Hague ICRC/Martinus Nijhoff , 1987)ICRC’s Commentary to GCI Th e Geneva Conventions, Commentary, Vol I,

Geneva Convention for the Amelioration of the Wounded and Sick in Armies in the Field, (Ge-

neva: ICRC, edited by J.S Pictet, 1952)ICRC’s Commentary to GCIII Th e Geneva Conventions, Commentary, Vol III,

Geneva Convention Relative to the Treatment

of Prisoners of War, (Geneva: ICRC, edited

by J.S Pictet, 1958)ICRC’s Commentary to GCIV Th e Geneva Conventions, Commentary, Vol IV,

Geneva Convention Relative to the Protection

of Civilian Persons in Time of War, (Geneva: ICRC, edited by J.S Pictet, 1958)

Yugoslavia

Tribunal)IMTFE International Military Tribunal for the Far

East (Tokyo Tribunal)Ind J Global Legal Stud Indiana Journal of Global Legal Studies

Italian YbkIL Italian Yearbook of International Law

J.A.G.S United States Judge Advocate General’s School

J Int’l L & Econ Journal of International Law and Economics

LNTS League of Nations Treaty Series

Loyola LAICLJ Loyola of Los Angeles International and

Compara-tive Law Journal (currently known as Loyola of

Los Angeles International and Comparative Law

Review)

and prepared by the United Nations War Crimes Commission, (Buff alo, NY/London: William S

Hein & Co., Inc./His Majesty’s Stationery Offi ce,

1949, reprinted in 1997)Maryland J Int’l L & Trade Maryland Journal of International Law and Trade

Max Planck Ybk UN Law Max Planck Yearbook of the United Nations Law

N.A.A.F.I (UK), Navy, Army & Air Force Institutes

Neth.YbkIL Netherlands Yearbook of International Law

Nordic JIL Nordic Journal of International Law

N.Y.U J Int’l L & Pol New York University Journal of International Law

and Politics

Offi cial Records Offi cial Records of the Diplomatic Conference on

the Reaffi rmation and Development of International Humanitarian Law Applicable in Armed Confl icts, Geneva (1974–1977)

Pace Int’l L Rev Pace International Law Review

Palestinian YbkIL Palestinian Yearbook of International Law

Criminal Court

RDMDG Revue de Droit Militaire et de Droit de la Guerre

(Note that before 1989 this was issued as: Revue

de droit pénal militaire et de droit de la guerre)

RDTAM Recueil des Décisions des Tribunaux Arbitraux Mixtes

Institués par les Traités de Paix

Reg Regulation

Res Resolution

S.D.N.Y United States District Court for the Southern

District of New York

Study or ICRC’s Customary J.M Henckaerts and L Doswald-Beck, Customary

(Geneva/Cam-bridge ICRC/Cam(Geneva/Cam-bridge Univ Press, 2005)Tex Int’l L J Texas Journal of International Law

UK Manual 1958 Th e Law of War on Land being Part III of the

Manual of Military Law, (1958)

UK Manual (2004) UK Ministry of Defence, Th e Manual of the Law

of Armed Confl ict, (2004)

Organization

Cam-bodia

East Timor

Vand JTL Vanderbilt Journal of Transnational Law

Virginia JIL Virginia Journal of International Law

WW I World War I

Yale JIL Yale Journal of International Law

Yale LJ Yale Law Journal

YbkECHR Yearbook of the European Convention on Human Rights

YbkIHL Yearbook of International Humanitarian Law

YbkILC Yearbook of International Law Commission

ZaöRV Zeitschrift für ausländisches öff entliches Recht und Völkerrecht

Th is monograph closely examines the evolution of a diverse array of specifi c rules and principles underpinning the law on belligerent occupation, which have survived the turbulent geopolitical periods of two World Wars and a number of occupation scenarios since 1945 Such examinations may help elucidate whether

or not these rules and principles can eff ectively respond to diverging challenges posed to international humanitarian law (IHL) in the uncertain world after the terrorist attacks on September 11, 2001 It is suggested that the relatively indeterminate nature of many of the IHL rules can explain their sustainability,

as they have been adjusted to accommodate changing needs in occupied tory Th e malleability of the law of occupation may be highlighted especially

terri-in relation to the legislative scope of the occupant Th e monograph defends the continued validity and pertinence of both the underlying rationales and fundamental premises of the law of occupation, even in the contemporary con-text of occupation Nevertheless, it stresses the crucial need to interpret much

of the occupation law in ways that can duly refl ect requirements of international human rights law

Th e monograph deducts appropriate principles and guidelines from the cal survey of the relevant domestic and international jurisprudence, and of the literature (classic and modern) Such crude and unalloyed principles and guide-lines are tested and given systematic and coherent meaning and place through doctrinal appraisal, which will be carried out in each of the chapters focusing

empiri-on specifi c areas of occupatiempiri-on law Th e doctrinal appraisal is fully supported by the extensive and thorough empirical investigations into the drafting documents

of the relevant humanitarian treaties (the 1874 Brussels Declaration, the 1907 Hague Regulations Respecting the Laws and Customs of War on Land; the four Geneva Conventions of 1949; and the two Additional Protocols to the Geneva Conventions of 1977) Th e empirical survey was undertaken at the following archives and libraries (the Swiss Federal Archive in Bern, and the archive and the library at the ICRC, Geneva) Clearly, arguments are also corroborated by ample references to the relevant case-law (both national and international) in the context of World War I and World War II, and to modern scenarios of armed confl icts (international and non-international) and occupation