Unearthing the Problematic Terrain of Prolonged Occupation

This paper will explore the travaux préparatoires of the legal instruments of the laws of war and international humanitarian law (IHL) with a view to obtaining crucial insight into their drafters’ ‘original’ understandings as to the issues of the provisional nature and the temporal length of occupation. The findings of the travaux show that the framers of the ‘classic’ laws of war instruments agreed on the general premise that the legal regime of occupation ought to be provisional. In the concurrent doctrinal discourses, this premise was endorsed by most scholars. The examinations of the draft records of the 1949 Geneva Civilians Convention reveal that even the proponents of ‘transformative occupation’ did not seem to envisage the occupation of the kind that would endure for decades. Nevertheless, by the time the 1977 Additional Protocol I was crafted, several instances of protracted occupation persisted. This seemed to be decisive for a shift in the argumentative structure. There is no gainsaying the applicability of IHL to any occupied territories, irrespective of the length of occupation. Yet, the suggestion that nothing under IHL would forestall an occupying power from engaging in a long-term occupation departs from the traditional premise that occupation ought to be provisional. This also seems to be paradoxical in historical perspectives.