- Research Handbooks in Human Rights series
Edited by Robert Kolb and Gloria Gaggioli
Chapter 14: The law of occupation and human rights law: some selected issues
Human rights law can certainly play an important role in delimiting the occupying power’s rights and duties, notably in relation to the occupied population. Indeed, the creation of a robust human rights law (hereafter HRL) regime has significantly altered international expectations with regard to the treatment of inhabitants of occupied territory, in particular since this body of law has been, over time, widely recognized as applicable in situations of occupation. Therefore, HRL may arguably impose formal obligations on the occupant in the course of its administration of the occupied territory. Recently, the International Court of Justice underlined the relevance of HRL in times of occupation and the occupant’s legal obligation to take it into account in the actions it carries out and the policies it develops in the occupied territory. As a result, it has been argued that HRL might serve as a basis for changing existing local laws or even be used to justify transformative objectives. This illustrates that nowadays one cannot consider contemporary occupation contexts without addressing the issue of HRL application. As A. Roberts put it nicely, ‘it is neither desirable nor possible to view the laws of war as necessarily and in all cases providing a complete framework, such that human rights law is of little relevance. On the contrary, human rights law enters in to such situations in numerous ways and its role should be accepted’. Undoubtedly, actions of the occupant must be examined not only through the lens of International Humanitarian Law (hereafter IHL) but also through that of HRL
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