Keywords
Occupation law
Remote warfare
Drones
Artificial Intelligence
Cyber operations
Accountability
Effective control
How to Cite
Abstract
The occupying state traditionally bases its occupation established under International Humanitarian Law (IHL) as embodied in Hague Regulations (1907) and Geneva Convention IV (1949) on the basic premise that real control over a territory must be achieved through a physical military occupation and direct control by the occupying authority. Nonetheless, the fast rate of change in the technologies of warfare (unmanned combat systems, i.e., drones, artificial intelligence-based surveillance, cyber operations, and proxy networks) has contributed to the creation of a different paradigm, the so-called Ghost Occupation. The phenomenon involves the cases of states implementing and sustaining occupation-like authority, and referring to territories and peoples, without having deployed the armed forces that usually create the requirements of the occupying powers in light of the Belligerent Occupation of IHL.
This paper is a critical analysis of the systematic undercutting by remote warfare technology of the occupation doctrine on IHL by weakening the relationship between presence and effective control. By looking into modern conflict situations, namely operations by drones in Somalia by the U.S., control measures in the West Bank of Israel, which are augmented by computer-assisted technology, and tactics used by Russia to ensure a hybrid war in Ukraine, we reveal how the states can find legal gray areas to establish de facto domination without the final status of an occupation. The resultant problem of accountability places civilian populations in an uncertain legal trap without the safeguards of the occupation regime as stipulated in IHL.
It is also possible to argue in the article that the present state of IHL occupation might become outdated unless it can adapt to the modern-day reality of digital superiority, where algorithms rule and constant remote military action takes place.
The occupying state traditionally bases its occupation established under International Humanitarian Law (IHL) as embodied in Hague Regulations (1907) and Geneva Convention IV (1949) on the basic premise that real control over a territory must be achieved through a physical military occupation and direct control by the occupying authority. Nonetheless, the fast rate of change in the technologies of warfare (unmanned combat systems, i.e., drones, artificial intelligence-based surveillance, cyber operations, and proxy networks) has contributed to the creation of a different paradigm, the so-called Ghost Occupation. The phenomenon involves the cases of states implementing and sustaining occupation-like authority and referring to territories and peoples, without having deployed the armed forces that usually create the requirements of the occupying powers in light of the Belligerent Occupation of IHL.
This paper is a critical analysis of the systematic undercutting by remote warfare technology of the occupation doctrine on IHL by weakening the relationship between presence and effective control. By looking into modern conflict situations, namely operations by drones in Somalia by the U.S., control measures in the West Bank of Israel, which are augmented by computer-assisted technology, and tactics used by Russia to ensure a hybrid war in Ukraine, we reveal how the states can find legal gray areas to establish de facto domination without the final status of an occupation. The resultant problem of accountability places civilian populations in an uncertain legal trap without the safeguards of the occupation regime as stipulated in IHL.
It is also possible to argue in the article that the present state of IHL occupation might become outdated unless it can adapt to the modern-day reality of digital superiority, where algorithms rule and constant remote military action takes place.
Keywords: International Humanitarian Law, occupation law, remote warfare, drones, artificial intelligence, cyber operations, accountability, effective control.
References
Al-Haq. (2021). Automated oppression: How surveillance technology and automated systems entrench Israeli apartheid and settler colonialism.
Amnesty International. (2023). USA: The hidden victims of the ‘forever war’: Civilian casualties from US operations in Somalia.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
I.C.J. Reports 2007, p. 43.
Alston, P. (2010). Report of the Special Rapporteur on extrajudicial killings. UN Doc. A/HRC/14/24.
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.
Article 36. (2022). Key elements of a compliance-focused approach to autonomous weapons systems.
Benvenisti, E. (2012). The international law of occupation (2nd ed.). Oxford University Press.
B’Tselem. (2021). A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid.
Boothby, W. H. (2016). The law of targeting. Oxford University Press.
Boyle, M. J. (2020). The drone age: How drone technology will change war and peace. Oxford University Press.
Bureau of Investigative Journalism (BIJ). (2023). Drone warfare: Yemen.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
p. 14.
Case Concerning Armed Activities (DRC v. Uganda), ICJ (2005).
Crootof, R. (2015). The internet of things and international humanitarian law: An uncertain legal relationship. International Law Studies, 91, 433– 466.
Dinniss, H. H. (2012). Cyber warfare and the laws of war. Cambridge University Press.
Dinstein, Y. (2019). The International Law of Belligerent Occupation.
Ferraro, T. (2012). Determining the beginning and end of an occupation under international humanitarian law. International Committee of the Red
Geneva Convention IV (1949). Art. 2, 47, 49.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287. (1949).
Gillard, E.-C. (2021). Occupation in international humanitarian law: Old challenges, new trends. International Law Studies, 97, 1318–
Goodman, R., & Jinks, D. (2013). Socializing states: Promoting human rights through international law. Oxford University Press.
Hakimi, M. (2020). The future of the law of occupation. AJIL, 114(4), 642–667.
Hakimi, M. (2021). Defending functional sovereignty. AJIL Unbound, 115, 22–
27.
Human Rights Watch (HRW). (2017). Grading the separatists: Human rights abuses in Russian-occupied eastern Ukraine.
Human Rights Watch. (2023). "Death by Drone: Remote Warfare and Civilian Harm."
Human Rights Watch. (2023). Automated harm: Israel’s AI surveillance in the
West Bank.
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277. (1907).
Hague Regulations (1907). Art. 42–43.
ICJ. (2005). Armed Activities on the Territory of the Congo (DRC v. Uganda).
ICRC. (2024). 2024 Report on IHL Challenges.
International Committee of the Red Cross (ICRC). (2016). Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition
International Committee of the Red Cross (ICRC). (2021). The principles on the responsible use of autonomy in weapon systems: An ICRC
International Committee of the Red Cross (ICRC). (2024, June 27). Statement on autonomous weapons systems and artificial intelligence: ICRC calls for new
Kofman, M., & Rojansky, M. (2015). A closer look at Russia’s “hybrid war”. Kennan Cable No. 7. Wilson
Murray, D. (2020). Human rights obligations of non-state armed groups. Hart Publishing.
Pictet, J. S. (Ed.). (1958). Geneva Convention relative to the protection of civilian persons in time of war: Commentary. International Committee of the
Polyakova, A., Boyer, S., Meister, S., & Rojansky, M. (2016). The Kremlin’s Trojan horses 2.0: Russian influence in Greece, Italy, and Spain. Atlantic Council.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. (1977).
Rid, T., & Buchanan, B. (2015). Attributing cyber attacks. Journal of Strategic Studies, 38(1-2), 4–37.
Schmitt, M. N., & Vihul, L. (Eds.). (2017). Tallinn manual 2.0 on the international law applicable to cyber operations (2nd ed.). Cambridge University Press.
Schmitt, M. N. (2021). "Autonomous Weapons and the Law of Armed Conflict." Cambridge UP.
Shapiro, A. (2021). Ghost occupation: The forgotten law of foreign territorial control. Vanderbilt Journal of Transnational Law, 54(5), 1251– 1308.
Shamir, R. (2017). The colonies of law: Colonialism, Zionism and law in early Mandate Palestine. Cambridge University Press.
Sossai, M. (2019). Accountability for violations of international humanitarian law committed through autonomous weapons systems. Journal of International Criminal Justice, 17(4), 739–761.
Snetkov, A. (2020). Russia’s cyber operations in Ukraine: Implications for
international law. Journal of Cyber Policy, 5(2), 199–
217.
UN Human Rights Council (UNHRC). (2016). Report on the human rights situation in Ukraine: 16 May to 15 August
UN Human Rights Council (UNHRC). (2022). Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since
Weizman, E. (2017). Hollow land: Israel's architecture of occupation (New ed.). Verso.
Woods, C. (2015). Sudden justice: America’s secret drone wars. Oxford University Press.
Zureik, E., Lyon, D., & Abu-Laban, Y. (Eds.). (2010). Surveillance and control in Israel/Palestine: Populat
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