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

Transcription

1 The Law of Occupation Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law By Yutaka Arai-Takahashi Arts & Humanities Research Council M A RT I N U S NITHOFF PUBLISHERS LEIDEN BOSTON 2009

2 Contents Preface The List of Abbreviations Prolegomenon xxvii xxxi xxxix PARTI THE GENERAL PRINCIPLES OF THE LAW OF OCCUPATION Chapter 1: The Scope of Application of the Law of Occupation 3 1. Introduction 3 2. The Meaning of Occupation and the Scope of Application Ratione Materiae of the Law of Occupation Overview Effective Control Control of a Territory Beyond the Territorial Boundaries of the Occupying Power Irrelevance of "Official" Proclamation by de facto Occupying Powers The Scope of Application Ratione Personae of the Law of Occupation The Scope of Application Ratione Temporis of the Law of Occupation The Commencement of Occupation The Termination of Occupation Criteria for Assessing the End of Occupation: Effective Handover and Elections The Rules Concerning Postliminium Different Categories of Occupation Overview Post-Armistice Occupation The "Mixed Occupation" (Miscbbesetzung) Post-Surrender Occupation 30

3 vi Contents 6.5. Post-Debellatio Occupation (Occupation based on Debellatio) Pacific Occupation {Occupatio Pacified) Basic Rules on the Law of Belligerent Occupation The Transitional Nature of Occupation Oath of Obedience, and not Oath of Allegiance The Interdiction of Annexation The Exclusion of Applicability of the Law of Occupation? Overview The Relationship between the Legality in Jus ad Bellum and the Applicability of the Law of Occupation A Brief Examination of the "Missing Reversioner" Theory Conclusion 52 Chapter 2: Sources of the Law of Occupation Introduction Treaty Law Customary International Humanitarian Law The Fourth Geneva Convention as Customary International Law General Principles of International Law Overview The Principle of Self-Determination General Principles of International Humanitarian Law and the Martens Clause Security Council Resolutions Adopted under Chapter VII of the UN Charter Overview Derogability of Security Council Resolutions from the Law of Occupation Can the Security Council Acting under Chapter VII of the UN Charter Override Obligations under IHL and International Human Rights Law? Security Council Resolutions Must Abide by Jus Cogens The Relationship between Security Council Resolution 1483 and the Law of Occupation Conclusion 89 Chapter 3: The Legislative Competence of the Occupying Power under Article 43 of the 1907 Hague Regulations The Scope of Legislative Power under Article 43 of the 1907 Hague Regulations 91

4 Contents vii 2. The Origin of Article 43 of the 1907 Hague Regulations - Articles 2 and 3 of the Brussels Declaration of The Meaning of the Expression "vie publique" The Meaning of the Words "les lois en viguer" The Obligation to Restore and Ensure Public Order and Civil Life The Nature of Obligations The Obligations Relating to Public Order The Obligation to Ensure Public Order and Civil Life Laws Enacted by "Absent" Sovereign Exceptions to Article 43 of the 1907 Hague Regulations "Empechement absolu" Welfare of the Population State Practice in Relation to Article 43 of the 1907 Hague Regulations during the Two World Wars Abrogation of Fascist Laws under the Necessity Test Waiver of Article 43 of the 1907 Hague Regulations by a Subsequent Agreement? Ill 11. Conclusion 113 Chapter 4: The Legislative Competence of the Occupying Power under the Fourth Geneva Convention Introduction Article 64 of GCIV and the Necessity Exceptions Article 64 of GCIV Drafting Records of Article 64 of GCIV The Scope of Legislative Power of the Occupant under Article 64 of GCIV Three Elements of Incoherence The Relationship between Article 43 of the 1907 Hague Regulations and Article 64 of GCIV Three Elements of Necessity under Article 64 of GCIV Overview The Necessity Test Based on Security Grounds The Necessity of Maintaining Public Order and Civil Life The Necessity of Fulfilling the Obligations under the Geneva Conventions The Necessity of Fulfilling Obligations under International Human Rights Law? Conclusion 136

5 viii Contents Chapter 5: The Administrative and Judicial Structures in Occupied Territory Introduction The Administrative Structures in Occupied Territory Overview Three Basic Principles The Remoulding of Administrative Structures in Occupied Territory: Exceptions to the Three Basic Rules Introduction of Democratic Governance Alterations in Boundaries of Occupied Territories The Prohibition of Coercion or Discrimination against Public Officials or Judges in Occupied Territory Removal of Public Officials and the Necessity Test Local Government Judicial Structures in Occupied Territory Administration of Justice The Personal Scope of Jurisdiction in Occupied Territory Judicial Review of Ultra Vires Acts of the Occupant? Occupation Courts Overview Occupation Courts under GCIV Occupation Courts and War Crimes Conclusion 166 Chapter 6: Regulations of the Economy in Occupied Territory Introduction: The General Principle of Good Administration of the Economy Investments in Occupied Territory Public Finance Taxes "Other Money Contributions" Permissibility of Introducing New Taxes Immunity of Occupation Authorities from Local Tax Conclusion 182 Chapter 7: The Prohibition of the Destruction of Enemy Property in Occupied Territory Introduction A Scorched Earth Policy Destruction of Property and the Military Necessity Test Extensive Destruction and Appropriation of Property as a Grave Breach of GCIV Conclusion 192

6 Contents ix Chapter 8: The Prohibition of the Seizure and Use of Public Property in Occupied Territory Introduction: The Distinction between Private and Public Property State Property Overview Immovable State Property (Land and Buildings) of a Civilian Character Immovable State Property (Land and Buildings) of a Military Nature Movable State Property Debt Special Categories of Property Overview Property of Municipalities Civilian Hospitals Property of Civil Defence Property Permanently Assigned to Civil Defence Organisations under Military Command Exploitation of Natural Resources General Rules The Impact of the Principle of Self-Determination of Peoples upon the Rules on Exploitation of Natural Resources in Occupied Territory Conclusion 216 Chapter 9: Private Property in Occupied Territory Introduction The Prohibition of Pillage Temporary Use of Immovable Private Property Overview Justification for Requisitioning Private Immovable Property for Temporary Use: "Needs of the Army of Occupation" or "Imperative Military Necessity"? Movable Private Property Four Categories of Private Movable Property Private Movables Essentially of a Non-Military Nature Appliances of Communication or Transportation, Depots of Arms and Munitions de Guerre Submarine Cables Linking an Occupied Territory with a Neutral Territory Works of Art and Science 234

7 x Contents 5. Expropriation Conclusion 238 Chapter 10: The Protection of Cultural Property in Occupied Territory Introduction The Obligation to Assist, Preserve and Notify The Principle That 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 The Obligation to Prohibit, Prevent and Stop any Form of Theft, Pillage or Misappropriation of, and Any Acts of Vandalism Directed against, Cultural Property of Great Importance to the Cultural Heritage of Every People The Prohibition on Requisitioning Cultural Property in Occupied Territory The Obligation to Prohibit and Prevent Illicit Export of Cultural Property from Occupied Territory The Obligation to Return Cultural Property Exported from Occupied Territory The Obligation to Prohibit or Prevent Archaeological Excavations in Occupied Territory The Obligations to Prohibit or Prevent the Alterations to (or the Change of Use of) Cultural Property in Occupied Territory The Prohibition of Reprisal against Cultural Property The Protection of Cultural Property in Occupied Territory and War Crimes Overview General Remarks on the War Crimes Based on Seizure of, Destruction of, or Wilful Damage Done to, Cultural Property in General War Crimes of Seizure of Cultural Property War Crimes Based on Extensive Destruction and Appropriation of Cultural Property in Occupied Territory Criminalisation under the 1999 Second Hague Protocol Conclusion 257

8 Contents xi 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 Introduction Conferral of Rights upon Individual Persons under IHL Treaty-Based Rules General Principles of IHL Relating to the Protection of Rights of Individual Persons Horizontal Effects Positive Obligations State Responsibility for Violations of Rights of Civilians in Occupied Territory The Right of Individual Persons to Claim Reparations The Fourth Geneva Convention and the Protection of Rights of Individual Persons Overview The Rights Guaranteed under Part III of GCIV General Principles of the Fourth Geneva Convention Relating to the Protection of Fundamental Rights Three "Minimum Core Guarantees" Recognised under Article 27 of GCIV The Respect for Lives, Honour, Family Rights, Religious Convictions and Practices, and Manners and Customs The Right to Equality and to Non-Discrimination The Inviolability of the Fundamental Guarantees of Protected Persons in Occupied Territory Measures of Control and Security Derogation under Article 5 of GCIV Overview Derogation from Rights of Protected Persons in Occupied Territory Two Non-Derogable Rights Expressly Mentioned in Article 5 of GCIV The Specific Elaborations of the Rights of Humane Treatment General Remarks The Prohibition of Physical and Moral Coercion The Prohibition of Measures Causing Physical Suffering or Extermination Overview 280

9 xii Contents Drafting Records Ramifications The Prohibition of "Measures of Intimidation or of Terrorism" The Prohibition of Belligerent Reprisals The Prohibition of Belligerent Reprisals against Protected Persons Who Fall in the Hands of the Adversary Belligerent Reprisals against Civilians of an Adverse Party During the Conduct of Hostilities The Prohibition on Taking Individual Persons as Hostages Overview Historical Evolution of the Prohibition on Taking Hostages Criminalisation of Hostage-Taking since The Scope of Application Ratione Personae of the Victims of Hostage-Taking Conclusion 296 Chapter 12: Hostilities in Occupied Territory, Protected Persons, and Participants in Hostilities The Threshold for Determining Hostilities in Occupied Territory The Resumption of Hostilities or the Outbreak of New Hostilities The Resumption of Hostilities in Occupied Territory Outbreak of Non-International Armed Conflict in Occupied Territory Hostilities between the Occupying Power and the Armed Groups Who Are Not Resistance Movements within the Meaning of Article 4A(2) ofgciii Cross-Border Hostilities between a State and Non-State Actors as Non-International Armed Conflicts The Definition of Protected Persons and Civilians Protected Persons under Article 4 of GCIV Deprivation of Protected Persons Status? The Concept of Civilians under API "Combatants" in Occupied Territories Members of Lawful Combatants of International Armed Conflict in Occupied Territory 308

10 Contents xiii 3.2. Participants in Non-International Armed Conflict in Occupied Territory Three Categories of Individual Persons Affected by Non-International Armed Conflict in Occupied Territory Rebels and the "Revolving Door" Scenario The Distinction between Current and Former Members of Armed Forces of the Occupied State Classification of Foreign Infiltrators as Unprivileged Belligerents Unprivileged Belligerents in Occupied Territory Overview Three Strands of Argument on the Scope of Protection of GCIV in Relation to Unprivileged Belligerents The Concept of Direct Participation in Hostilities Overview The Temporal Element "For Such Time" Direct Participation or Indirect Participation? Conclusion 325 Chapter 13: Specifically Prohibited Acts in Occupied Territory Introduction Deportation or Forcible Transfer of Protected Persons Overview The General Scope of Application Ratione Personae of Article 49(1) of GCIV Deportation of Infiltrators of Foreign Nationality Controversy over the Customary Law Status of Article 49(1) of GCIV The Collective or Individual Deportation? Forcible Transfer of Civilians within Occupied Territory The Question of Nationality and the Internal or External Nature of Deportation/Transfer Unlawful Deportation or Transfer of Protected Persons as a Grave Breach Form of War Crimes Evacuation Overview Derogation from Article 49(1) of GCIV? Additional Requirements concerning Evacuation under API Free Movement of Protected Persons 345

11 xiv Contents 5. Deportation or Transfer by the Occupying Power of Part of its Own Population into the Occupied Territory Overview Is Coercion an Element of Transfer of the Civilians of the Occupant into Occupied Territory? The Distinction between Transfer pursuant to a Policy and Voluntary Settlement? Indirect Measure of Transfer? Transfer by the Occupying Power of its own Population into Occupied Territory as a War Crime Prohibition of Forced Labour Conclusion 353 Chapter 14: Economic, Social and Cultural Rights in Occupied Territory Introduction The Right to Adequate Working Conditions and the Prohibition on Causing Unemployment Rights to Food and Medical Supplies, and Other Humanitarian Relief Supplies Obligations to Furnish Humanitarian Relief Supplies Free Passage of Consignments Duties on Transit States to Allow Free Passage of Relief Consignments The Requirement of Respecting and Protecting Humanitarian Relief Personnel, Civil Defence Organisations, Medical Personnel, Civilian Hospitals and Medical Units Overview The Requirement of Respecting and Protecting Humanitarian Relief Personnel The Duty to Respect and Protect Civil Defence Organisations The Requirement of Respecting and Protecting Medical Personnel The Requirement of Respecting and Protecting Civilian Hospitals and Medical Units The Protection of Public Health and Hygiene The Prohibition on Requisitioning Relief Supplies, and Immovable Property Belonging to Relief Societies etc The Prohibition on Requisitioning Relief Supplies Diversion of Relief Consignments? Requisition of Civilian Hospitals 367

12 Contents xv 6 A. Requisition of Shelters The Prohibition on Requisitioning, or Diverging from Their Proper Use, Building or Materiel Belonging to, or Used by, Civil Defence Organisations Rationales for Applying International Human Rights Law of Economic, Social and Cultural Nature in Occupied Territories Derogation from Economic, Social and Cultural Rights Conclusion 373 Chapter 15: IHL-Based Rights of Women and Children in Occupied Territories Introduction IHL Treaty-Based Rights of Women in Occupied Territory Overview General Safeguards of the Rights of Women under IHL The Rights of Women Derived from the Obligations to Respect and Protect The Right of Women Deprived of Liberty to be Held in Quarters Separate from Men The Responsibility of the Japanese Imperial Army for Sex Slavery (so-called "Comfort Women") before and during World War II Fragility and Ineffectiveness of the Gendered Rubrics of IHL Rights of Children in Occupied Territory Overview Children's Right to Education in Occupied Territory The Right of Children Who are Deprived of Their Liberty to be Held in Quarters Separate from Adults The Prohibition on Recruiting Children in Occupied Territory Recruitment of Children as a War Crime Conclusion 391 Chapter 16: Other Specific IHL-Based Rights of Individual Persons in Occupied Territory Introduction Respect for the Convictions and Religious Practices of Civilians The Right to Apply to Protecting Powers and to the Red Cross or to Other Humanitarian Organisations Conclusion 397

13 xvi Contents PART III CONVERGENCE AND INTERACTION BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW Chapter 17: The Relationship between International Human Rights Law and International Humanitarian Law in Occupied Territories The Applicability of Human Rights during Armed Conflict Fundamental Differences between International Human Rights Law and IHL The Complementary Relationship between IHL and International Human Rights Law The Threshold of Derogation Clauses under International Human Rights Law and the Applicability of Common Article Advantage of Relying on IHL Rules in Assessing International Human Rights Law IHL as Lex Specialis Overview Brief Examinations of the Lex Specialis Rule Two Requirements of the Lex Specialis Rule Two Contexts in Which the Application of the Lex Specialis Rule is Contemplated Limit of the Lex Specialis Rule The Lex Specialis Rule and the Interplay between IHL and International Human Rights Law Circumstances in Which the Lex Specialis Rule Should be Excluded to Allow the Application of International Human Rights Law The Methodology of Applying IHL Rules by Human Rights Treaty Bodies Overview Direct Application of IHL by Human Rights Treaty Bodies Indirect Application of IHL by Human Rights Treaty Bodies The Methodology of Expanding the Scope of Application of International Human Rights Law in Situations of Occupation and Armed Conflict Kretzmer's Mixed Model Fundamental Differences in the Underlying Rationales of IHL and International Human Rights Law Revisited Conclusion 435

14 Contents xvii Chapter 18: The Effective Convergence between IHL and International Human Rights Law in Guaranteeing the Right to Life in Situations of "Volatile Occupation" Introduction Guidelines Derived from the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Criteria for Assessing the Legality of Targeted Killing in Occupied Territory Proportionality Assessment of the Right to Life in Situations of Hostilities Modalities of Proportionality in Assessing the Right to Life in the Context of International Human Rights Law The Approach of the European Court of Human Rights: the Precautionary Principle as Part of Proportionality The Methodology of Incorporating Sub tests of Proportionality Developed in the Context of International Human Rights Law into the Appraisal of Conduct of Hostilities Overview The Less Restrictive Alternative (LRA) Doctrine The Applicability or not of the LRA Subtest to the Assessment of Conduct of Hostilities Proportionality Strict Sensu Procedural Requirements for Targeted Killings Overview Ex ante Procedural Requirements Post Factum Procedural Requirements The Duty of Effective Inquiries into Circumstances of Killing The Duty to Prosecute and Punish Responsible Soldiers and Their Superiors Conclusion 455 Chapter 19: The Expanding Catalogue of Human Rights of Non-Derogable Nature Introduction Article 4 of the ICCPR Overview The Requirement of a Proclamation of a State of Emergency The Requirement of Immediate Notification Existence of a State of Emergency Consistency with Other Obligations under International Law 463

15 xviii Contents 2.6. The Prohibition of Discrimination The Principle of Proportionality The List of Non-Derogable Rights Expressly Provided under Article 4 of the ICCPR General Comment No. 29 of the Human Rights Committee Overview The Legal Basis for the Human Rights Committee to Issue General Comment No Normative Status of General Comment No The Expanded Catalogue of Non-Derogable Rights under General Comment No General Remarks The Right to Humane Treatment The Prohibition on Taking Hostages, Abductions or Unacknowledged Detention Overview Abduction The Rights of Persons Belonging to Minorities The Prohibition of Deportation or Forcible Transfer of Populations The Prohibition of Propaganda for War and of Advocacy of National, Racial, or Religious Hatred That Would Constitute Incitement to Discrimination, Hostility or Violence Other Non-Derogable Rights Identified by the Human Rights Committee The Right to an Effective Remedy under Article 2(3)(a) of the ICCPR Judicial Guarantees in Relation to Non-Derogable Rights Core Elements of Fair Trial Guarantees Conclusion 481 Chapter 20: Procedural Safeguards and Fair Trial Guarantees in Occupied Territory Introduction Assigned Residence and Internment/Administrative Detention The Legal Basis for Depriving Persons of Liberty in Occupied Territory The Legal Basis for Procedural Safeguards of Persons Deprived of Liberty in Occupied Territory The Limited Scope of the Procedural Safeguards for Internees/Administrative Detainees 486

16 Contents xix 2.4. Procedural Safeguards for Persons Other than Protected Persons in Occupied Territory The Analogous Application of Procedural Safeguards to Persons Captured in the UN-Administered Territory General Principles Governing Internment/Administrative Detention of Individual Persons in Occupied Territory The Principle That Internment or Administrative Detention Must be Carried out in Accordance with the Principle of Legality The Principle That Internment or Administrative Detention is an Exceptional Measure The Principle That Internment or Administrative Detention Must Not be an Alternative to Criminal Proceedings Procedural Safeguards That are Expressly Recognised in IHL Treaties Overview The Procedural Safeguards That are Largely Influenced by International Human Rights Law The Right of Interned or Administratively Detained Persons to be Informed Promptly, in a Language They Understand, of the Reasons for such Deprivation of Liberty The Right to Contest Measures of Internment or Administrative Detention The Right to Periodic Review The Application of Judicial Review in Occupied Territory The Right to Release with the Minimum Delay Possible The Prohibition on Administrative Detention of Indefinite Nature The Procedural Safeguards That Are Specific to IHL Immunity from Arrest, Prosecution and Conviction for Acts Committed, or for Opinions Expressed, before the Occupation The Requirement That Persons Interned or Administratively Detained Must be Registered and Held in a Recognised Place of Internment or Administrative Detention Procedural Safeguards That Need to be Supplemented by the Practice of International Human Rights Law The Right to Legal Assistance The Right to Attend at the Process of Review 506

17 xx Contents 6. Fair Trial Guarantees of Accused Persons in Occupied Territory - the Interplay between IHL and International Human Rights Law Disaggregated Overview The Legal Basis for Fair Trial Guarantees under IHL and International Human Rights Law The 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 The Structure of Analysis The First Step: the Identification of the Customary Law Status of Fair Trial Guarantees Contained in IHL Treaty Provisions Overview The Customary Law Status of the Elements of the Rights of the Accused That Are Safeguarded in Article 75(4) API Additional Elements of the Rights of the Accused, Which Can be Derived from Article 75(4) API, and the Ascertainment of Corresponding Customary Rules The Second Step: Ascertaining the Non-Derogability of Corresponding Rules Embodied under Human Rights Treaties The Third Step: The Methodology of Recruiting Specific Elements and Principles from Documents and the Case-Law of the Monitoring Bodies of Human Rights Treaties Overview The Normative Significance of the Case-Law of the Monitoring Bodies of Human Rights Treaties in Ascertaining Customary International Law The Normative Significance of Documents of the Monitoring Bodies of Human Rights Treaties in Ascertaining Customary International Law Is it Possible to Read Additional Non-Derogable Elements of Fair Trial Guarantees in the Human Rights Committee's General Comment No. 25>? The Elements of the Rights of the Accused, Which are Expressly Contained in Article 75(4) API Fundamental Principles of Criminal Law The Right to be Presumed Innocent 521

18 Contents xxi 8.3. The Right to be Informed of the Nature and the Cause of Accusation The Right to Trial by an Independent, Impartial and Regularly Constituted Court Overview Non-Derogability under the Practice of International Human Rights Law The Role of International Human Rights Law in Complementing Procedural Guarantees of Occupation Courts The Trial of Civilians by Military Courts The Trial of Unprivileged Belligerents in Occupied Territory The Right of the Accused to be Present at the Trial The Right to Examine Witnesses or the Right to Have Witnesses Examined The Right of the Accused Not to be Compelled to Testify against Him/Herself and the Protection against Coerced Confessions The Right of the Convicted Persons to be Informed of Available Remedies and of their Time-Limits Non bis in idem (Freedom from Double Jeopardy) The Right to Public Proceedings The Elements of the Rights of the Accused, Which are Implied from the General Terms under Article 75(4) API The Rights Relating to Means of Defence Overview The Right to Defend Oneself or to be Assisted by a Lawyer of One's Own Choice The Right to Free Legal Assistance The Right to Sufficient Time and Facilities to Prepare the Defence The Right of the Accused to Communicate Freely with Counsel The Right to the Assistance of an Interpreter or Translator The Right to Trial without Undue Delay The Right to Remain Silent The Right of Convicted Persons to Appeal Conclusion 545

19 xxii Contents PART IV EVOLVING ISSUES OF THE LAW OF OCCUPATION Chapter 21: The Extraterritorial Application of International Human Rights Law in Occupied Territory Introduction: Extraterritorial Applicability of International Human Rights Law in Occupied Territory The Meaning of the Term "within its territory and subject to its jurisdiction" under Article 2(1) ICCPR Travaux Preparatoires of Article 2(1) ICCPR The Approach of the Human Rights Committee The Human Rights Committee and the "Subsequent Practice" of States Parties The Meaning of the Term "within their jurisdiction" under Article 1 ECHR Travaux Preparatoires of the ECHR The Approach of the European Court of Human Rights in Relation to the Meaning of Jurisdiction under Article 1 ECHR Doctrinal Discourse on the Meaning of the Words "within its territory and subject to its jurisdiction" The Circumstances in Which the Extraterritorial Application of International Human Rights Law Can be Envisaged Overview Cases Where a State Exercises Control over a Territory of Another State Bankovic and the Espace Juridique Doctrine Cases Where a State Exercises Control, Power or Authority over Individual Persons Cases Where a State Exercises Control over the Infliction of the Alleged Violation Conclusion 581 Chapter 22: The Applicability of the Law of Occupation to UN Peace Support Operations and UN Post-Conflict Administration Introduction The Applicability of Customary IHL to the UN Peacekeeping Forces Can the UN Become Parties to IHL Treaties? The Practice of the United Nations and the UN Secretary- General's Bulletin on Observance by United Nations Forces of International Humanitarian Law 589

20 Contents xxiii 5. Other Indices for the Applicability of IHL Rules to UN Forces The Distinction between Enforcement Action and Non-Enforcement Action in Assessing the Applicability of IHL Consent as a Determining Factor? The Convention on the Safety of the United Nations and Associated Personnel The Threshold for Determining Whether the UN Forces Have Become Parties to an Armed Conflict The UN Post-Conflict Administration and the Law of Occupation The UN Practice Relating to Post-Conflict Administration The Appraisal of the Applicability of the Law of Occupation to the UN Administration Conclusion 605 PARTV THEORETICAL APPRAISAL Chapter 23: The Nature of Customary International Humanitarian Law Revisited Introduction Inquiries into the Formation of Customary International Law in General Two Constituent Elements: State Practice and Opinio Juris Some Problems Relating to State Practice Can Verbal Acts Constitute Practice Free of a Specific Normative Belief? Some Problems Relating to Opinio Juris Subjective Elements of State Practice, Which are Indicative of Opinio Juris Methodology of Ascertaining Customary IHL Inductive Approach Deductive Approach The Relationship between a Treaty-based Norm and Customary Law The Implications of the North Sea Continental Shelf Cases Revisited 622

21 xxiv Contents 4.2. The Requirement of "a very widespread and representative participation in the convention" Critical Appraisal of the Relationship between Treaty-Based Norms and Customary Law "Modern" vs. "Traditional" Understanding of the Formation of Customary International Law Overview Traditional Customs Modern Understanding of Customs Fidler's Three Perspectives of Evaluating Modern Customs Descriptive Accuracy and Normative Appeal Revisited Modern Customs Based on Deduction from Moral Substance Apology and Utopia: Dealing with Koskenniemi's Critique of Legal Argumentations Overview Traditional Customs and Apology Modern Customs and Utopia Evaluations of Koskenniemi's Argumentation Overview Beckett's Proposal for a "Virtual Sovereign" and the Reflexive Process of Custom Formation Dworkin's Interpretative Theory The Sliding Scale Conceptualisation of Custom Anthea Roberts' Proposal to Balance Fit and Substance in Rawls' "Reflective Methodology" Conclusion 655 Chapter 24: Identifying Customary IHL in Occupied Territories on the Basis of its Interplay with Customary International Human Rights Law Introduction The Proposed Framework of Customary IHL Relating to Fundamental Guarantees in Occupied Territories The Process of Ascertaining Customary IHL in the Interaction with Customary International Human Rights Law Distinct Variables in the Context of the Law of Occupation Overview The Underlying Concept of Military Necessity 661

22 Contents xxv 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? Implications of Individual Criminal Responsibility Conclusion 666 Table of Case-Law 669 Table of Treaties and Other Major International Instruments 703 Bibliography 709 Index 741