Silos of International Law: Occupation and Forced Migration

Abstract

Using the United States occupation of Iraq as a case study, this chapter asks what international law has to say about state responsibility for forced migrants in situations of occupation. The legal status of these migrants is governed by at least three special regimes: international humanitarian law, international human rights law, and international refugee law. Each of these special regimes has something to say about the protection of migrants forcibly displaced by occupation, but none speaks adequately to the question of the occupying power’s responsibilities for such migrants.

This chapter explores the international legal silos created by narrowly-focused treaty regimes and static customary international law. It begins with a roadmap of current international law relevant to the question of international legal responsibility for forced migrants in situations of occupation, finding three relevant bodies of law but no clear answers. The chapter then examines actions of the United States that demonstrate at least some belief in the occupying power’s responsibility to protect forced migrants in situations of occupation. It concludes by discussing the problem of international legal silos more broadly and suggests methods for bringing greater coherence to this and other areas of international law.

Keywords: occupation, international humanitarian law, forced migration, refugee law, international human rights law

JEL Classification: K33