Alejandro Chehtman
PhD in Law, London School of Economics
Profesor Investigador UTDT

Abstract: This paper provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. The paper focuses on two separate sets of issues. On the one hand, it is concerned with the relevance of the principle of equality of belligerents, ie, the potential relevance of jus ad bellum considerations on the legal rights of occupants. It examines whether lawful and unlawful occupants should have the same rights at the bar of justice. On the other hand, it looks into armed conflicts not of an  international character by addressing the authority of courts belonging to non-state actors in areas of conflict (e.g., FARC “tribunals” in certain areas of Colombia). As a matter of international humanitarian law, it is roughly the case that all state occupying forces possess criminal jurisdiction over the occupied territory. It is likely that certain non-state forces also have this kind of prerogatives, at least when they fulfil certain basic requirements. Most contemporary scholars working on just war theory, however, seem prima facie committed to assigning quite different rights to just and unjust belligerents. The paper proceeds as follows. It first identifies a “standard case” - that of a lawful occupying force which is also a state - and provides a convincing argument as to why international law confers jurisdictional powers on this occupying force. This section assesses some of the key features of the law of occupation, such as its attachment (in principle) to the laws in force in the country. The paper then goes on to examine whether the fact that the occupying force is unlawful or whether it is a non-state actor should have any bearing on the legitimacy of it holding criminal jurisdiction on the relevant territory. Ultimately, I argue that, subject to certain conditions (having to do mainly with courts satisfying basic human rights’ standards and maintaining the local criminal laws “unless absolutely prevented”), both unlawful occupying forces and tribunals of non-state actors should be entitled, as a matter of normative argument, to exercise criminal jurisdiction on the territory under their control. This general position would undoubtedly be resisted by theorists who advocate a significant degree of influence of jus ad bellum on jus in bello. This paper assesses some of their objections and suggests that they are unrelated to the specific considerations on which the power to punish is granted under these circumstances. The paper argues, by contrast, that the strong intuition that unlawful occupants should not hold criminal jurisdiction over individuals in the occupied territories stems from considerations other than the fact that they did not comply with the jus ad bellum. In particular, it suggests that it is the fact that such power constitutes a “criminal” state (in the sense that the Nazi state was arguably a criminal state), which ultimately undermines its authority to punish offenders on the occupied territories.

El seminario se dictará en idioma castellano.