Promoting the Rule of Law Through the Law of Occupation? An Uneasy Relationship

Abstract

A core objective of the law of occupation has traditionally been that the occupying power should heed rule of law standards in the administration of the occupied territory. Less clear is whether it should also seek to inculcate rule of law standards into the local government. To be sure, the pertinent rules of the law of occupation provide for far-reaching competences of the occupying power. However, given the predominately negative, security-focused and conservationist nature of the occupier’s powers, its involvement in the “rule of law transfer” business should not be overrated. While it is true that two major post-1945 developments, i.e. international human rights law and the involvement of the UN Security Council, have contributed toward broadening, recalibrating, and dynamizing the applicable legal standards in situations of occupation, it is nonetheless crucial to resist the temptation to concede, in the name of promoting the rule of law, too much legislative leeway to the occupying power. Thus, the question whether, and to what extent, the law of occupation mandates the occupying power to engage in promoting the rule of law in the occupied territory, calls for a differentiated, and cautious, answer. 145 Promoting the Rule of Law Through the Law of Occupation?