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This article will explore the travaux préparatoires of the key legal instruments on the laws of war and international humanitarian law (IHL) with a view to obtaining crucial insight into the ‘original’ understandings of their drafters as to the provisional nature and the temporal length of occupation. The findings of the travaux show the general premise of the framers of the ‘classic’ instruments on the laws of war that the legal regime of occupation should be provisional. In the concurrent doctrinal discourses this premise was endorsed by most scholars. Examination of the records of the negotiations on the drafting of the Fourth Geneva Convention of 1949 reveals that even the proponents of ‘transformative occupation’ did not seem to envisage occupation that would endure for decades. Nevertheless, by the time the 1977 Additional Protocol I was drafted, several instances of protracted occupation already existed, which seems to have led to a decisive shift in the argumentative structure. There is no disputing the applicability of IHL to any occupied territory, irrespective of the length of the occupation. Yet the suggestion that nothing under IHL would forestall an occupying power from engaging in protracted occupation departs from the traditional premise that occupation ought to be provisional. This also seems to be paradoxical in historical perspectives.
This article examines the historical evolution of the law of occupation from two angles. First, it analyses scholarly discourse and practice with respect to the general prohibition on the Occupying Power making changes to the laws and administrative structure of the occupied country, as embodied in Article 43 of the 1907 Hague Regulations. Many Occupying Powers and scholars have endeavoured to rationalize exceptions to this ‘general principle’ governing the entire corpus of the law of occupation. Their studies support the contingent nature of the law of occupation, with its interpretation being dependent on different historical settings and social context. The second part of the article focuses on how the law of occupation that evolved as a European project has rationalized excluding the system of colonialism from the framework of that law. The historical assessment of this body of jus in bello would be incomplete and biased if it did not address the narratives of such structural exclusivity.
The September 11 attacks and the ensuing military operations in Afghanistan have raised a multitude of complex and disturbing problems for the existing humanitarian normative order. Much of the legal scholarship on recent events concerning Afghanistan has focused on the issues of the legal status of captured Taliban and Al Qaeda soldiers under humanitarian law, their detention conditions at Guantánamo Bay in Cuba and the inadequacy of procedural safeguards for judicial proceedings of the proposed Military Commissions under the US Presidential Order and the Department of Defence Order. This paper takes a somewhat different approach, looking first at the legal characterisation of the armed conflicts in Afghanistan since 6/7 October 2001 and particularly the internecine hostilities that have continued since the apparent end of the war, before examining the status of combatants and that of prisoners of war. Clarification of the nature of the armed conflicts and of the scope of application of the rules on prisoners of war is essential for disentangling the legal quagmire surrounding the controversy over the legal status of both Taliban and Al Qaeda soldiers under the jus in bello.