Factors in War to Peace Transitions
von Heinegg, Wolff Heintschel, Harvard Journal of Law & Public Policy
Situations of international armed conflict regularly give rise to some misunderstandings with regard to the applicable law and its interpretation. This especially holds true if these misunderstandings are reinforced by statements of a purely political character. All too often some commentators, obviously considering such statements to be of higher relevance than the law, prefer to rely upon these statements rather than on a proper analysis of the relevant treaties. The situation in Iraq gives ample proof of legal evaluations that are, to say the least, based on an erroneous interpretation. (1)
It is the aim of the present paper to clarify what law applies as the transition from war to peace occurs. To do this, it must first be determined which situations qualify as wars or as international armed conflicts, (2) as distinguished from peace. Closely related to this determination are the different forms of terminating and of suspending an international armed conflict. Clarifications of such forms are prerequisites for the identification of the point in time at which the law of armed conflict ceases to apply. After these necessary preliminaries, it will be possible to deal with the rights and duties of an occupying power and with the legal validity of the measures taken by that power. Thus, the ground will be paved for a final determination of what law applies during the different phases marking the transition from war to peace.
I. WAR AND PEACE DISTINGUISHED
While a state of war may still be brought into existence by a declaration of war, (3) sometimes combined with an ultimatum, (4) there is currently a general agreement that the law of armed conflict applies to every situation of international armed conflict, even if a state of war does not exist or is not recognized. (5) An international armed conflict is defined as a situation, usually characterized by the use of the armed forces of one State against another State, that necessitates the application of the body of law aimed at the protection of victims of armed conflicts (6)--wounded, shipwrecked, sick, and captured members of the armed forces, the respective civilian population, and individual civilians--and regulating the methods and means of warfare. (7) The actual conduct of armed hostilities is, however, not a conditio sine qua non. According to common Article 2 of the 1949 Geneva Conventions, the Geneva Conventions "shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." (8)
A. Occupation and "Cessation of Active Hostilities" or "General Close of Military Operations"
The ratio legis of the provision applying the law of armed conflict to an occupation, even if it meets no armed resistance, is obvious. According to Article 42, para. 1, of the 1907 Hague Regulations, "territory is considered occupied when it is actually placed under the authority of the hostile army." (9) The civilian population, one of the groups of protected victims, comes under the authority of the enemy's armed forces and thus is in need of continuing protection by the laws of armed conflict. Moreover, the presence of foreign forces on a State's territory, which in case of occupation will presumably be against that State's will, is to be considered a continuous use of military force by one State against another State.
This, by necessity, implies that any situation of occupation constitutes an international armed conflict, regardless of whether it meets armed resistance or not. As long as the "hostile army" is present and is exercising "authority" in the territory in question, the armed conflict has not come to an end. However, the mere fact that the occupying forces cease to effectively exercise such authority--whether they are forced to retreat or they are needed elsewhere--does not mark the end of the international armed conflict. …