11.2 WHEN MILITARY OCCUPATION LAW APPLIES
11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONS
11.4 LEGAL POSITION OF THE OCCUPYING POWER
11.5 DUTY OF THE OCCUPYING POWER TO ENSURE PUBLIC ORDER AND SAFETY
11.6 PROTECTION OF THE POPULATION OF AN OCCUPIED TERRITORY
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11.2 WHEN MILITARY OCCUPATION LAW APPLIES
The law of military occupation applies when a military occupation exists in fact.
Even if the requirements of the law of belligerent occupation do not apply as a matter of law, general law of war principles and rules, such as those for the conduct of hostilities, continue to apply.
Military Occupation as a Fact. Military occupation is a question of fact.47 11.2.1 The legal consequences arising from the fact of occupation (i.e., that this fact is the basis for both rights and duties) illustrates how the law of war may be viewed as both permissive and restrictive in nature.
The fact of occupation is the basis for the Occupying Power to exercise authority over the occupied territory.49 The fact of occupation, as a requirement for the exercise of authority over the occupied territory, prevents a State from simply claiming the authorities of military government over an enemy territory without actually controlling such territory.
The fact of occupation also imposes certain duties on the Occupying Power with respect to occupied territory.51 The fact of occupation, as a requirement for triggering the duties of an Occupying Power, means that a State that does not, in fact, occupy an area, does not incur the obligations of an Occupying Power.
Once an occupation exists in fact, regardless of whether the invasion was lawful or unlawful under jus ad bellum, the rights and duties of the Occupying Power and the population in relation to each other apply.52 This application of the law of belligerent occupation is an example of how jus in bello rules and jus ad bellum rules generally operate independently of one another.
11.2.2 Standard for Determining When Territory Is Considered Occupied. Territory is considered occupied when it is actually placed under the authority of the hostile forces.
This standard for when the law of belligerent occupation applies is reflected in Article 42 of the Hague IV Regulations and is regarded as customary international law.
11.2.2.1 “Actually Placed” – Effectiveness of Occupation. Military occupation must be actual and effective; that is, the organized resistance must have been overcome, and the Occupying Power must have taken measures to establish its authority.
It is sufficient that the occupying force can, within a reasonable time, send detachments of forces to enforce its authority within the occupied district. Military occupation does not require the presence of military forces in every populated area, although the occupying force must, inter alia, control the most important places.
The type of forces used to maintain the authority of the Occupying Power is not material.
For example, the occupation might be maintained by permanently based units or mobile forces, either of which would be able to send detachments of forces to enforce the authority of the Occupying Power within the occupied district. However, air superiority alone would not constitute an effective occupation.
Similarly, as long as the occupation is effective, there is no precise number of forces that are considered necessary to constitute an effective occupation. The number of forces necessary to maintain effective occupation will depend on various considerations, such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors.
An occupation may be effective despite the existence of areas in the enemy State that are temporarily controlled by enemy forces or pockets of resistance. For example, the fact that a defended location (such as a city or town) still controlled by enemy forces exists within an area declared occupied by the Occupying Power does not render the occupation of the remainder of the area invalid, provided that continued resistance in such place or defended zone does not render the occupier unable to exercise control over the remainder of the occupied territory.60 Similarly, an occupation may continue to be effective despite intermittent insurgent attacks or temporary seizures of territory by resistance forces.
11.2.2.2 “Under the Authority” – Suspension and Substitution of Governmental Authority. Occupation also requires the suspension of the territorial State’s authority and the substitution of the Occupying Power’s authority for the territorial State’s authority.
The territorial State must be rendered incapable of publicly exercising its authority in the territory, and the Occupying Power must substitute its authority for that of the territorial State.
Invading forces in possession of the territory must have taken measures to establish their authority.64 For example, such measures may include establishing its own governmental authority for that area and making regulations for the conduct of temporary government.
The suspension and substitution of authority may take place with local authorities continuing to administer territory subject to the paramount authority of the Occupying Power.
On the other hand, routine measures necessary to provide for unit security (e.g., warning private persons not to threaten or interfere with military operations) would not necessarily constitute measures to establish authority over enemy territory.
The substitution of authority by the Occupying Power may be shown by a proclamation of occupation, although such a proclamation is not required.
11.2.2.3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory. Occupation occurs when territory is actually placed under the authority of the hostile army. Thus, the existence of an occupation presupposes a hostile relationship between the invading force’s State and the State of the occupied territory, although the occupation need not be met with armed resistance.
For example, the law of belligerent occupation would not apply to the use of military forces to control a State’s own territory, such as in cases of domestic emergency, insurrection, or non-international armed conflict.
Similarly, the law of belligerent occupation would not apply to the liberation of friendly territory that was previously occupied by the enemy.
The requirement of a hostile relationship between the invading force’s State and the State of the occupied territory also prevents the law of belligerent occupation from applying to postconflict situations (except for certain provisions of the GC).
11.2.3 Scope of Occupied Territory. The occupation extends only to the territory where such authority has been established and can be exercised.
For example, a State may remain in control of part of its territory while the remainder of its territory is under occupation. The 1949 Geneva Conventions apply in cases of partial or total occupation of a State.
The end of occupation in one part of occupied territory does not end the occupation in other parts of the occupied territory where the Occupying Power maintains its authority.
11.2.4 Proclamation of Occupation. Due to the special relations established between the civilian population of the occupied territory and the Occupying Power, the fact of military occupation and the territory over which it extends should be made known to the citizens of the occupied territory and to other States.
However, there is no specific legal requirement that the Occupying Power issue a proclamation of military occupation.
The question of whether territory is occupied does not depend upon the issuance of any particular proclamation or other instrument. Territory may be occupied even though no proclamation of occupation has been issued. Conversely, the issuance of proclamation of occupation does not empower a State with the rights of an Occupying Power if it does not control such territory in fact
A proclamation may help fix the date of the beginning of the occupation. The proclamation may also advise inhabitants of occupied territory of the rules with which they must comply.76 In particular, the proclamation may be used to advise inhabitants of changes to law, including penal law.
The general practice of the United States has been to make the fact of occupation known by proclamation or similar notice. In addition to giving notice to the inhabitants of occupied territory, notice may be given to other governments. In some cases, the U.N. Security Council has recognized the fact of occupation.
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11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONS
The status of belligerent occupation ends when the conditions for its application are no longer met. Certain GC obligations with respect to occupied territory continue for the duration of the occupation after the general close of military operations.
11.3.1 End of Occupation. Belligerent occupation ceases when the conditions for its application are no longer met. In particular, as discussed below, the status of belligerent occupation ceases when the invader no longer factually governs the occupied territory or when a hostile relationship no longer exists between the State of the occupied territory and the Occupying Power.
Belligerent occupation ends when the Occupying Power no longer has effectively placed the occupied territory under its control. For example, an uprising by the local population may prevent the Occupying Power from actually enforcing its authority over occupied territory. Similarly, the Occupying Power’s expulsion or complete withdrawal from the territory would also suffice because the former Occupying Power generally would not be able to control sufficiently the occupied territory.
Belligerent occupation also may end when a hostile relationship no longer exists between the Occupying Power and the State of the occupied territory (although, as discussed in the following subsection, certain GC obligations may continue to apply). For example, if a new independent government of the previously occupied territory assumes control of the territory and consents to the presence of the previously occupying forces, then such a situation would no longer be considered a belligerent occupation. Similarly, if a peace treaty legitimately transfers the territory to the sovereignty of the Occupying Power, then the Occupying Power would no longer be characterized as such. However, an Occupying Power is not permitted, under the law of belligerent occupation, to annex occupied territory.
11.3.2 Duration of GC Obligations in the Case of Occupied Territory. In the home territory of parties to the conflict, the application of the GC shall cease on the general close of military operations.
In the case of occupied territory, the application of the GC shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such State exercises the functions of government in such territory, by the provisions of the following Articles of the GC:
• 1 through 12 (general provisions and common articles, e.g., the Protecting Power continues to function, and the derogation for security reasons continues to apply);
• 27, 29 through 34 (humane treatment);
• 47 (preserves rights as against change by annexation or arrangement with the local authorities so long as occupation lasts);
• 49 (transfers, evacuation, and deportation);
• 51, 52 (prohibitions against certain compulsory service and protection of workers);
• 53 (respect for property); • 59, 61 through 63 (facilitating relief programs);
• 64 through 77 (criminal proceedings); and
• 143 (access by Protecting Powers and the ICRC).
The one-year time limit for the cessation of the application of the GC (apart from the provisions that continue to apply to the extent that the Occupying Power exercises the functions of government in occupied territory) was proposed to account for situations like those of Germany and Japan after World War II. 88 AP I provides that the 1949 Geneva Conventions and AP I shall cease to apply, in the case of occupied territories, on the termination of the occupation;89 coalition partners that are Occupying Powers and Parties to AP I would be bound by this rule.
In any case, individuals entitled to GC protection who remain in the custody of the Occupying Power following the end of occupation retain that protection until their release, repatriation, or re-establishment. In addition, it may be appropriate following the end of occupation to continue to apply by analogy certain rules from the law of belligerent occupation, even if such rules do not apply as a matter of law.
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11.4 LEGAL POSITION OF THE OCCUPYING POWER
Military occupation of enemy territory involves a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory.92 The fact of occupation gives the Occupying Power the right to govern enemy territory temporarily, but does not transfer sovereignty over occupied territory to the Occupying Power.
11.4.1 Right of the Occupying Power to Govern the Enemy Territory Temporarily. The right to govern the territory of the enemy during its military occupation is one of the incidents of war.93 By the fact of occupation (i.e., the Occupying Power’s established power over occupied territory), the Occupying Power is conferred the authority to exercise some of the rights of sovereignty.94 The exercise of these sovereign rights also results from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force, and the failure or inability of the legitimate government to exercise its functions, or the undesirability of allowing it to do so.95
11.4.2 Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty Over Occupied Territory. Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the Occupying Power. Occupation is essentially provisional.
Because sovereignty is not vested in the Occupying Power, the fact of military occupation does not authorize the Occupying Power to take certain actions. For example, the Occupying Power is not authorized by the fact of belligerent occupation to annex occupied territory or to create a new State.98 In addition, the Occupying Power may not compel the inhabitants of occupied territory to become its nationals or otherwise to swear allegiance to it.99 Similarly, in view of the provisional nature of belligerent occupation, the authority of the Occupying Power under occupation law has been interpreted as being subject to limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.
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11.5 DUTY OF THE OCCUPYING POWER TO ENSURE PUBLIC ORDER AND SAFETY
The authority of the legitimate power having in fact passed into the hands of the Occupying Power, the latter shall take all the measures in its power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. This principle has been recognized as customary international law.
The Occupying Power has a general duty to maintain public order and to provide for the preservation of rights of the inhabitants, including rights to their private property.
11.5.1 Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and Safety. The Occupying Power’s duty to take all the measures in its power to restore and ensure, as far as possible, public order and safety also provides it authority take such actions. For example, the Occupying Power may enact provisions to maintain the orderly government of the territory.
11.5.2 Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country. The duty to respect, unless absolutely prevented, the laws in force in the country prohibits the Occupying Power from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.
The duty to respect, unless absolutely prevented, the laws in force in the country has been interpreted not to apply to local administrative laws, such as regulations, executive orders, ordinances, and decrees.
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11.6 PROTECTION OF THE POPULATION OF AN OCCUPIED TERRITORY
Under the law of belligerent occupation, the Occupying Power has certain duties with respect to the population of an occupied territory, including protected persons under the GC.
11.6.1 General Protections, Including Humane Treatment, of the Population of an Occupied Territory. The population of an occupied territory, like other protected persons under the GC, are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.107 They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats of violence, and against insults and public curiosity.
Other provisions for the humane treatment of protected persons set forth in Articles 27 through 34 of the GC apply to the population of an occupied territory. For example, women must be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.108 Reprisals against protected persons and their property are prohibited.109 The taking of hostages is prohibited.
In addition, protected persons in occupied territory shall have every facility for making application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them.
11.6.2 Overview of Additional Protections for the Population That Are Specific to Occupation. There are a number of protections for the population of occupied territory that are specific to occupation. For example, specific provision exists for the protection of children in occupied territory.112 Specific constraints exist on the authority of the Occupying Power to punish protected persons, direct their movement, or compel them to perform labor. Provision also is made with respect to: (1) food and medical supplies of the population; (2) public health and hygiene; (3) spiritual assistance; and (4) relief efforts and consignments.
The following prohibitions also apply with respect to the inhabitants of occupied territory:
11.6.2.1 Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the Hostile State. It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile State.
11.6.2.2 Prohibition Against General Penalties in Occupied Territory. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible. Such penalties are prohibited, even if authorized under the law of the occupied territory.
Collective penalties are prohibited as a general matter.
11.6.3 Occupying Power’s Duty to Respect the Rights of Protected Persons Secured by the GC. The Occupying Power has certain obligations to respect the rights of protected persons secured by the GC.
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the GC by any change introduced, as the result of the occupation of a territory, into the institutions or government of the occupied territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory. For example, an Occupying Power may not purport to annex occupied territory in order to avoid its responsibilities as an Occupying Power.
The Occupying Power may not enter into any special agreements that would adversely affect the situation of protected persons, as defined by the GC, nor restrict the rights that the GC confers upon them.
The Occupying Power may also not evade its responsibilities through the purported renunciation by protected persons of the rights secured to them by the GC and by any special agreements referred to in Article 7 of the GC.
In certain cases, a protected person’s rights of communication under the GC may be forfeited for security reasons.
11.6.4 Citizens of Neutral States in Occupied Territory. Citizens of neutral States residing within an occupied territory are generally treated the same as other residents of occupied territory.