OPS Issue 1: Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding

Yoram Dinstein
Oct 2004

Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention (II) of 1899 and (IV) of 1907, is the linchpin of the international law of belligerent occupation. Two diverse obligations are imposed on the Occupying Power by Hague Article 43: (a) to restore and ensure, as far as possible, public order and life in the occupied territory; (b) to respect the laws in force in the occupied territory unless an “empêchement absolu” exists. The first obligation has to be implemented by the executive (and the judicial) branch of the Military Government of the Occupying Power, whereas the second obligation devolves to the legislative branch. The first obligation requires acts of commission, and the second duty postulates primarily acts of omission. Neither obligation is absolute. Although in principle the Occupying Power has to maintain the laws in force in the occupied territory, it is generally understood that the preexisting legal system can be modified through new legislation when a necessity arises. In principle, any legislation enacted by the Occupying Power in the name of necessity applies in the occupied territory during the occupation and not beyond that stretch of time. Article 64 of the 1949 Fourth Geneva Convention expresses in a more precise and detailed form the terms of Article 43 of the Hague Regulations. Without exhausting the concept Article 64 allows for suspension or repeal of existing laws and the enactment of new legislation in three exceptional situations: (i) the need of the Occupying Power to remove any direct threat to its security and to maintain safe lines of communication, (ii) the duty of the Occupying Power to discharge its duties under the Geneva Convention, and (iii) the necessity to ensure the “orderly government” of the occupied territory. Obviously, the orderly government exception becomes more prominent under conditions of prolonged occupation. It is, therefore, required to establish a litmus test for resolving disputes concerning the validity of legislation enacted by the Occupying Power in the name of orderly government. How far can the Occupying Power go in tampering, in the name of necessity, with the institutions of government of the occupied territory? Under Article 47 of the Fourth Geneva Convention, should institutional changes be introduced by the Occupying Power, they must not deprive the civilian occupation in the occupied territory of any benefits conferred by international humanitarian law. But the paramount question is whether the Occupying Power can transform radically the political institutions of government in the occupied territory when its action does not affect adversely those benefits. While the practice of States is somewhat ambiguous, it is believed that such changes ought to be undertaken only by the territorial sovereign. The Occupying Power should not be allowed to interfere with fundamental institutions of government in the occupied territory, inasmuch as there is a disquieting possibility that the structural innovations (albeit temporary in theory) may take root and have enduring consequences. Under the Hague Regulations and the Fourth Geneva Convention, the rules stated above relate only to belligerent occupation. However, there is possibly room for their application by analogy also in circumstances of peacebuilding, subject to any binding resolution adopted by the United Nations Security Council.