Hello everybody it's another day and it's another episode of the law academy podcast welcome back now what we're going to do in this episode is talk about the law of h an rights as it relates to occupied territories it was one of the suggestions that we had on the community page for the law academy for the next few podcast episodes obviously everybody wants us to talk about russia ukraine and we're going to begin by talking about russia ukraine just updating everybody on the news and look at some one or two little legal issues that we have that we can talk about i try not to think about this podcast as a kind of news podcast because that's not particularly helpful,
We have news channels already but if there's something that relates to international law or law in general within this conflict then i will make talk a little bit about it at the start but the majority of this is going to be talking about the applicability of h an rights within occupied territories or belligerent occupation and i'll be drawing from a number of different sort a lot of international sources a lot of academic articles and books and stuff and all the sources that i have will be in the description below i'll have a big old bibliography for you to look through if you want to look into any of this even in more detail if you just want to think about this subject as an interesting topic and an interesting example of where the law really hasn't been resolved there's no real resolution on where the answer to this question is then sit back and enjoy,
And we'll talk about it in more detail but we're going to begin by just very briefly getting up to date on the news relating to what could be a state of belligerent occupation an occupied territory that being the state of ukraine and the russia invasion of it now at the time of recording this is half past four on the 27th on sunday the 27th of february 2022 we have a number of major announcements that i have come in the few days since the last podcast episode one of them being the economic sanctions that have been placed on on russia we have last night was the time when we saw an agreement among european states to get rid of at least or at least kick russia out of the swift international banking system now the extent to which this is going to be actually you know incredibly harmful to the to the russian state is debated on the one hand putin argued that this would be an implicit or at least a tacit example of a declaration of war,
Which is quite provocative and quite feisty language for something like the removal of swift but ultimately there's debate about whether or not these economic sanctions are going to be particularly helpful but in terms of the conflict itself we see that there is fighting going on in kiev still and ultimately the russian military have been unable to hold any major city they did take the city of kharkiv but they have been unable to hold the city of kharkiv so we see a problem here from the in terms of the russian military is ultimately as somebody who isn't a military expert or a military historian or anything like that i'm obviously not qualified to talk about how successful this invasion has been but at least from the perspective of somebody who is watching this from the distance this doesn't seem to be as success as successful in invasion,
As i believe putin probably wanted it to be so ultimately we've seen great resolve from the ukrainian people and one of the interesting aspects of international law that we can talk about is the fact that president zielinski of ukraine has asked the international court of justice the principal judicial organ of the united nations to weigh in on an in the in a system of advisory opinions on whether or not the invasion of ukraine was illegal or whether or not it wasn't now ultimately the reason for this is to make it very clear within international law and to make it clear by the principal judicial organ of the united nations whether or not this was an illegal act of war act of aggression ultimately i think personally the opinion is obviously going to be yes it would be very fringe legal opinion to suggest that it wasn't illegal but we'd have to see what the international court of justice says on that,
But in terms of international law that's quite an interesting development that has taken place in the last few days in fact this that is something that took place in the last few hours so that's basically all the news we've got so far on the potential occupation of ukraine and so now we need to talk about the actual law of occupation the law of belligerent occupation what it is what it means and then where h an rights fits into this into this picture now ultimately what i'm going to do is split this into three major sections i'm going to begin by just talking about the law of belligerent occupation what the actual rules are okay whereabouts we find the law of belligerent occupation i'm then going to talk about why h an rights law is necessary and should exist in a state of belligerent occupation we should be applying rights law to situations,
Where we have occupation occupied territories and then i'll talk about the argents against it because there are some argents against that that principle now ultimately the law of belligerent occupation is a branch of international h anitarian law international h anitarian law is just the laws of war effectively it is the law the international law that is applied in times of armed conflict now ultimately it finds itself that rules of belligerent occupation exist as both treaty law so laws that exist in in treaty form as well as customary international hanitarian law now if you want to know more about customary international h anitarian law there is a very very good research research and resource that was developed by the international committee for the red cross that effectively lists all the rules of customary,
In one big document and it is incredibly it tells you whether or not it is a rule that applies to international armed conflicts to non-international armed conflicts or both in some in some situations and it's an incredibly useful resource anybody who is studying international law and is studying international h anitarian law should know that document like the back of their hand they should have a very clear understanding of what kind of rules exist as treaty rules and what kind of rules exist as customary international h anitarian law in terms of the treaty law of occupation from now on we will just call it occupation law okay we have to refer to the firstly action three of the hague regulations and section three of the hague regulations incorporates articles 42 to 56 of is effectively articles 42-56 of the hague regulations that's where we see the first set of rules relating to occupation law,
Another set of rules is found in part three of the fourth geneva convention now the fourth geneva convention is the geneva convention relative to the protection of civilian persons in times of war so it's important to note that occupation law when it comes to where it exists in the geneva conventions exists in the convention that specifically focuses on the protection of civilians in time of war and that should probably give you some kind of insight as to what occupation law design is designed to do pride territories is designed to do now the question is when will occupation law apply when will the ihl of occupation apply and it will apply in circ stances where three main criteria are fulfilled this is work that has been done by marcus sasuli now he states that there are three criteria that have to be fulfilled to merit the existence of occupation law,
The first is one state has to take control of part of another state okay the second rule is the territorial state must have lost effective control over the quote-unquote occupied territory and then finally the territorial state must not consent to the occupation these are the three basic principles and from these three basic principles we can see that one of the interesting things that we have is that it obviously must presuppose the fact that if we have a state of belligerent occupation if we have an occupied territory the kind of conflict that has to exist has to be an international armed conflict and this actually does talk about and bring up an issue of the distinction between international armed conflicts and non-international armed conflicts we know that an international armed conflict is an armed conflict a war between multiple states like for example the conflict that is going on in russia and ukraine,
We have russia on one side and you have ukraine on the other side this is an international armed conflict an example of a non-international armed conflict is one where we have conflict within one territory an example of this can be ukraine at war or engaging in hostilities against russian separatist movements in the donbass region this was something that's been taking place for a very long time that would be an example of a non-international conflict and while some people believe that the rules of international h anitarian law should apply equally or both across both these types of conflict there are a number of problems with applying the same rules to an international armed conflict as they are to a non-international armed conflict ultimately there are some rules that can never be applied to just both of them,
And for and occupation law is an example of one of them because occupation law as that we have another state involved in the conflict that is invading a state a country so we have an invasion that takes place now ultimately the task of being able to define the meaning of occupation as it relates to international hanitarian law has been difficult for a number of reasons but what is important is that one has an adequate understanding of the meaning of belligerent occupation in order to truly understand the legal arguments that we're going to present in in the rest of this episode so one reason for the difficulty as to what we actually mean by occupying territory occupying a territory and belligerent occupation is even in situations,
Where the occupation might not even violate the usabellam the just war the concept of the war being the legality of the war a war could be completely legal under international law and there can be a state where we have belligerent occupation and even in those situations the countries that are occupying the other country often are very unwilling to admit that they are an occupying force or an imperialist force in any kind of way so even in a situation where there is no violation of the usabellan there is no violation of the legality of the conflict itself it could be a completely just conflict a completely just war even in those situations a country that is invading another country would be unwilling to admit that they are the belligerents and they are occupying this territory so therefore it's quite difficult to come to a definitive definition as to what occupation is,
But despite this we do have a number of principles that we can find so according to article 42 of the hague regulations a quote territory is considered occupied when it is actually placed under the authority of the hostile army okay so that's a very good example of where we can define occupation so occupation is defined under article 42 of the hague regulations as when a territory is placed under the authority of a hostile army so some aspects of ukraine in this russia ukraine conflict some parts of this territory are now considered occupied territories they are placed under the authority of hostile army no city at the time of recording has been placed under occupied territory however this might change within the next few days we'll have to keep watching the news but as it stands there are some areas of the state of ukraine that are in occupied territory or considered to be part of a belligerent occupation,
Situation now there are other ways we can define belligerent occupation but i think article 42 s marizes the idea quite nicely and ultimately with this definition we have a number of principles that belligerent occupation and the law of belligerent occupation intends to do i mentioned earlier on that it's quite interesting that the law of belligerent occupation is outlined in article sorry in the third geneva convention which is the geneva convention related to the protection of civilians and that's what one of the main principles of the law of occupation is they have to ultimately there are two principles that exist the first being that local civilians must be allowed to continue their lives as normally as possible and the second principle is the occupying powers only allowed interest is to occupy the territory using its armed forces,
So there can be no other ulterior motives by the occupying territory in terms of what they're allowed to do they have to only be allowed to occupy the territory using their armed forces they can't be any other kind of motives and these principles these principles that we have actually linked to the question of h an rights whether or not h an rights are applicable in these examples in examples such as the potential occupy occupation of the state of ukraine by russia.
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