INTRODUCTION

This chapter focuses on the jurisprudence of courts in liberated territories concerning the laws and administrative acts promulgated and applied by the occupying power. These courts must balance the international legality test against the adverse effects that the enforcement of international law could have on the local population and the returning government. As we show, national courts in the aftermath of occupation tend to attach higher priority to the transitional needs of their societies, and this could lead them, in cases of conflict, to downplay questions of international legality.

Our observations suggest that the need to respect legitimate expectations of individual parties has prompted some courts to validate transactions that were conducted in accordance with the occupant's orders even when such orders exceeded the limits that international law placed on the occupant's regulatory power. Moreover, there is some indication that the commitment of national courts to the processes of national reconciliation and the reshaping of national identity may also be stronger than their commitment to enforcing international law. Finally, considerations concerning the courts’ own reputation may also lead them to downplay the international legality test.

The ‘transitional bias’ of post-occupation courts which prefer transitional considerations over enforcing international law usually benefits domestic constituencies and local institutions. Obviously, however, this bias also reduces the effectiveness of the strictures of the law of occupation: future occupants would realize that their illegal measures would nevertheless be respected by the returning sovereign's courts, whereas appropriate legal measures might be ignored. While the ‘transitional bias’ is perfectly understandable, we argue that courts should nevertheless explicitly invoke this bias in their reasoning, thereby doing justice in a particular case while at the same time refining and developing the ex ante obligations of the occupants. One such example of retaining a distinction between the ex ante legality of the occupant's measures and the ex post validity of their outcomes was demonstrated by the International Court of Justice (ICJ) 1971 Advisory Opinion concerning the South African rule in Namibia. The so-called ‘Namibia Exception’ recognizes the need to respect legitimate expectations that are based on illegitimate legislation.

In order to appreciate the challenges faced by national courts in postoccupation periods, and to explore strategies they adopt in response to those challenges, this chapter examines several judicial decisions delivered in different post-occupation situations.