IRRC No. 885

The ICRC Project on Occupation and Other Forms of Administration of Foreign Territory

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Recent years have been characterized by an increase in extraterritorial military interventions. Some of these interventions–be they of the more classical form of occupation or of the form of extraterritorial military intervention–have given rise to new forms of foreign military presence in a state's territory, sometimes on a consensual basis, but more often not. These new forms of military presence have–to a certain extent–refocused attention on occupation law. Legal commentary about recent occupations has reflected on the alleged inability of occupation law to deal with contemporary occupations. In particular, some authors argue that the emphasis on maintaining the status quo ante, which precludes wholesale changes to the legal, political, institutional, and economic structure of an occupied territory, is too strong. It has been contended that the transformation of oppressive governments or the redress of society in complete collapse by means of occupation was in the interest of the international community and should be authorized by occupation law. Moreover, it has been affirmed that existing occupation law does not sufficiently take into account the development of human rights law and the principle of self-determination. Recent occupations have also highlighted how difficult it is to determine when an occupation begins and terminates, as well as to identify with certainty the legal framework governing the use of force in an occupied territory. Eventually, the UN administrations of territory have raised the question as to whether occupation law could be relevant in such situations. The legal challenges raised by contemporary forms of occupation outlined above have been at the core of the ICRC project that produced the report 'Occupation and Other Forms of Administration of Foreign Territory'. The purpose of this initiative, which began in 2007, was to analyse whether and to what extent the rules of occupation law are adequate to deal with the humanitarian and legal challenges arising in contemporary occupations, and whether they might need to be reaffirmed, clarified or developed. Three informal meetings, involving experts from states, international organizations, academic circles, and the NGO community, were organized to address, in detail, the legal issues raised above. As a result of this process, in June 2012 the ICRC published a report, Occupation and Other Forms of Administration of Foreign Territory. This report gives a substantive account of the main points discussed during the three experts meetings. The report does not reflect the ICRC's views on the subject matter addressed, but provides an overview of the range of current legal positions on the questions discussed. The ICRC believes that the report–which is the final outcome of the project–willserve to informand nourish ongoing and future legal debates on the need for clarification of some of the most significant provisions of occupation law. The overall picture emanating from the ICRC project and report shows that the law of occupation, because of its inherent flexibility, is sufficiently equipped to provide practical answers to most of the humanitarian and legal challenges arising from contemporary occupations.Thus, the ICRC believes that this body of law is,on the whole, adequate to meet the challenges of today's occupations. Accordingly, the ICRC concludes that the law of occupation does not require further development. However, some clarification of the existing norms would be, or may be, desirable. The ICRC believes that the report will be a useful instrument in relation to any clarification, while at the same time reaffirming the relevance of current occupation law.

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