1. Deportations, transfers, evacuations - Article 49 of the Fourth Geneva Convention

1The first paragraph of Article 49 of the Fourth Geneva Convention is of the utmost importance and the principle it expresses is repeated, or implied, in other provisions of the Convention.248 Moreover, the prohibition of forced transfers or deportations has become part of customary international law.249 The first paragraph of Article 49 of the Fourth Geneva Convention outlaws forcible transfers and deportations from the occupied territory to any other country. While the term “forcible transfer” seems to relate to displacement of persons within the occupied State, or even within the occupied territory, the term “deportation” involves the displacement beyond the boundaries of the occupied State.250

2This prohibition is not absolute since the second paragraph of Article 49 of the Fourth Geneva Convention allows evacuations if required for the “security of the population or imperative military reasons”251 within the occupied territory and, under certain circumstances, even outside of the bounds of the occupied territory.252 Such evacuations, however, are subject to stringent conditions, one of which states that the evacuated persons need to be transferred back to their homes.253 Similarly, while an occupying power is generally prohibited to retain protected persons in an “area particularly exposed to the dangers of war”, it is nevertheless entitled to prevent them from moving if “the security of the population or imperative military reasons so demand”.254

3Article 49 of the Fourth Geneva Convention also outlaws the practice of deporting or transferring parts of the occupant’s civilian population into the territory it occupies.255 According to the ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the occupied Palestinian territory, the prohibition in the sixth paragraph of Article 49 of the Fourth Geneva Convention also includes “any measures taken by an occupying Power in order to organize or encourage transfers”.256

4On the example of forced transfers or deportation of protected persons, the gap in protection that can result in a strict distinction between invasion and occupation becomes striking. If Article 49 of the Fourth Geneva Convention is not applied according to the functional beginning of belligerent occupation theory, no other provision of international humanitarian law would regulate the issue of transfers or deportations of protected persons during an invasion. As a consequence, the invading troops would be free to transfer or deport protected persons until a state of belligerent occupation has been established. Such an argumentation would fly in the face of the protective purpose of the Fourth Geneva Convention.

5In accordance with the functional beginning of belligerent occupation theory the prohibition on forced transfers and deportations would apply from the moment that a protected person falls into the hands of invading troops.257 However, such an interpretation would also authorise the retention of protected persons in an “area particularly exposed to the dangers of war” for reasons of “the security of the population or imperative military reasons”.258

6While the functional approach to occupation is of particular importance with regard to forced transfers or deportations of protected persons, it carries a lesser weight for transfers or deportations of parts of the occupying power’s civilian population into the occupied territory.259 It is hardly conceivable that an enemy power starts to organise or encourage transfers of its own population into a territory, which it does not fully control. While there might not be a serious gap in protection, application of the functional beginning of belligerent occupation theory would outlaw such a practice, and hence prevent colonisation from the outset of a military campaign on foreign territory.

2. Labour - Paragraphs two to four of Article 51 of the Fourth Geneva Convention

7Article 52 of the 1907 Hague Regulations authorises an occupying power to requisition, inter alia, services for the “need of the army of occupation” as long as they are in proportion to the resources of the country and do not involve inhabitants in military operations against their own country.260 The egregious forced labour system created by the Nazi regime during World War II proved the deficiencies of that provision. Although compulsory labour was not outlawed completely, the second, third and fourth paragraphs of Article 51 of the Fourth Geneva Convention nevertheless reinforce and regulate in detail the conditions of forced labour.261 They regulate, for instance, the minimum age of workers, as well as the place and kind of work that protected persons are allowed to carry out.

8An occupying power may only compel protected persons over the age of eighteen to carry out work which is required either for the “needs of the army of occupation or the needs of the population of the occupied territory”.262 Such work must not involve protected persons in military operations263 and protected persons must not be compelled to employ force to ensure the security of the place of work.264

9The third paragraph of Article 51 of the Fourth Geneva Convention lays down the working conditions. Pursuant to these conditions, the labour must be carried out within the occupied territory and, as far as possible, in the usual place of employment. Furthermore, workers shall be paid fair wages and the work must be “proportionate to their physical and intellectual capacities”.265 Reiterating the obligation to maintain existing legislation in the occupied territory,266 the plenipotentiaries underlined that the “legislation in force in the occupied territory concerning working conditions, and safeguards” remains applicable.267 Finally, compulsory work shall not result in labourers being mobilised in an organisation of a military or semi-military character.268

10The capacity to compel protected persons to work and the associated duties regarding working conditions presuppose that the protected persons find themselves in the hands of the invading army. Not applying the functional beginning of belligerent occupation theory would create a serious gap in protection because no other provision of IHL regulates the issue of compulsory work. Any imposition of compulsory work by a foreign power must therefore be regulated by paragraphs two to four of Article 51 of the Fourth Geneva Convention.269

3. Measures aiming at creating unemployment - Article 52(2) of the Fourth Geneva Convention

11The second paragraph of Article 52 of the Fourth Geneva Convention prohibits measures intended to create unemployment, or to restrict employment opportunities in the occupied territory, in order to induce inhabitants to work for the occupying power.

12An armed conflict usually has severe repercussions for the economies of the belligerent parties. The conduct of hostilities will inevitably affect the economic activities of a given territory and may itself lead to unemployment. The local economy of an invaded country in particular may be affected. The application of the second paragraph of Article 52 of the Fourth Geneva Convention, however, requires that the occupying power is in a position to implement the measures covered by that provision. Creating unemployment or restricting employment opportunities with a view to inducing the inhabitants of a territory to work for the occupying power will usually coincide with well-established authority over a certain territory. On the other hand, the second paragraph of Article 52 of the Fourth Geneva Convention is a negative duty, that is to say the occupying power must abstain from certain behaviour. An invading power does not therefore acquire any additional obligations where it has no full control. Having in mind the restrictions on movements implemented by Israel in the Palestinian occupied territories, it is by all means imaginable that an invading power could already be in a position to impose restrictions that severely affect the invaded territory and hence create unemployment or restrict working opportunities.270 Whether this is being done in order to induce workers of an occupied territory to work for the invading power would then be a different question and, most likely, a difficult one to prove. In the case of an invasion, the functional beginning of occupation theory would only require an invading power to abstain from a policy that induces workers of the invaded territory to work for the said power. As a result the invading power will automatically comply with the second paragraph of Article 52 of the Fourth Geneva Convention. An application of this prohibition only once a state of occupation has been established could create a gap in protection and might even erode the prohibition of deportation set out in the first paragraph of Article 49 of the Fourth Geneva Convention.271

4. Prohibited destructions - Article 53 of the Fourth Geneva Convention

13Article 53 of the Fourth Geneva Convention protects all property, real and personal, situated in occupied territory from destruction, unless such destruction is “rendered absolutely necessary by military operations”.272 This provision reinforces and extends the rules regarding property in occupied territory already laid down in the 1907 Hague Regulations as it also covers property owned collectively or belonging to the State.273 At the same time, the Commentary stresses that the geographical scope of Article 23(g) of the 1907 Hague Regulations relating to hostilities was wider because it would cover all property in a territory involved in war. The scope of Article 53 of the Fourth Geneva Convention, on the other hand, would be limited to occupied territory and to “destruction resulting from action by the occupying power”.274 As an example the Commentary mentions the bombardment of factories in an enemy country which has not yet been occupied and where Article 53 of the Fourth Geneva Convention and the grave breaches regime would accordingly not apply.275 It would seem that the Commentary wanted to underline that the rules on the conduct of hostilities prevail over the application of the rules on belligerent occupation.

14Article 23(g) of the 1907 Hague Regulations, figuring under the section “Hostilities”,276 prohibits the destruction or seizure of enemy property unless it is “imperatively demanded by the necessities of war”.277 This cardinal rule does not distinguish between kinds of property and covers movable and immovable as well as private and public property.278 It would thus appear that both Article 23(g) of the 1907 Hague Regulations and Article 53 of the Fourth Geneva Convention have the same material content and only differ in terms of their geographical scope.

15To judge whether a gap in protection would exist if Article 53 of the Fourth Geneva Convention were to apply only once a state of occupation within the traditional meaning has been established, one crucial question is whether or not the expressions “imperatively demanded by the necessities of war”279 and “rendered absolutely necessary by military operations”280 are identical. Dinstein believes that the difference between the two expressions “seems to be nominal”.281 As a matter of fact, the Commentary refers, with regard to when destruction of property is justifiable, to “imperative military requirements” as well.282 It would thus seem that the expressions “absolutely necessary” and “imperatively demanded” have the same connotation. On the other hand, one could argue that necessities of war, that is to say all “measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war”,283 have a wider scope than “military operations”.284 By often being used synonymously with the term “hostilities”,285 the latter expression need not necessarily be connected with all the necessities of war,286 and hence has a more restricted meaning.

16Should one adopt the interpretation that both expressions have virtually the same meaning, the material content of the prohibition of unjustified destruction would hence seem to be the same in Article 23(g) of the 1907 Hague Regulations and Article 53 of the Fourth Geneva Convention. One major difference between the two articles would consequently be the different geographical scope and that only unjustified destructions in occupied territories, that is to say a violation of Article 53 of the Fourth Geneva Convention, could amount to a grave breach of the 1949 Geneva Conventions.287 In case one accepts that Article 53 of the Fourth Geneva Convention has a more restrictive meaning than Article 23(g) of the 1907 Hague Regulations, be it only for the sake of the grave breaches regime, the functional beginning of belligerent occupation theory becomes relevant.

17Moreover, an even more fundamental difference between Article 23(g) of the 1907 Hague Regulations and Article 53 of the Fourth Geneva Convention results from the very concept of hostilities and risks to create a serious gap in protection. As soon as military operations pass the threshold of an armed conflict, the concept of hostilities covers the means and methods to which belligerents resort in order to injure the enemy.288 Yet, not all conduct by belligerents actually constitutes part of hostilities.289 While treaty law does not provide for a definition of hostilities, it is proposed that the concept of hostilities refers to all acts designed to support a party to the conflict against another and which are “likely to adversely affect the military operation or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack [emphasis added]”.290 Furthermore, there must be a direct causal link between the act and the harm in question.291 During the conduct of hostilities only military objectives may be attacked,292 and even attacks on military objectives which may be expected to cause disproportionate damage to civilian objects are outlawed.293 Article 49 of the 1977 Additional Protocol I defines the term “attacks” as “acts of violence against the adversary, whether in offence or defence [emphasis added]”.294

18The shortcoming of the concept of hostilities, and hence of Article 23(g) of the 1907 Hague Regulations, is that this concept, and the definition of military objectives in particular, do not cover attacks and the destruction of property by an invading power of objects that are already under the control of said power. While the second paragraph of Article 49 of the 1977 Additional Protocol covers any attacks of the legal sovereign against its own territory under the control of an adverse Party,295 no provision relative to the conduct of hostilities, other than Article 53 of the Fourth Geneva Convention, governs the case that the property to be destroyed is already in the hands of the invading power.

19In order to guarantee the protection of property without gaps it is thus of the greatest importance that one distinguishes between two situations:

• During hostilities the destruction of property under the control of the adversary is governed by the rules on the conduct of hostilities, that is to say only military objectives may be destroyed. Should hostilities take place in occupied territory, they are no different from the conduct of hostilities elsewhere, and hence the rules governing the conduct of hostilities will prevail as lex specialis.296

• On the other hand, if invading forces destroy property that is under their control, one can argue that the object is in occupied territory in accordance with the functional beginning of belligerent occupation theory and hence that Article 53 of the Fourth Geneva Convention governs the destruction such property. This could particularly be the case if the invading troops resort to operations with a view to maintaining law and order, or to ensure their safety, and proceed, for instance, with house searches.

20This approach distinguishing between different situations and applying different law to each of them would respect the specificities encountered during hostilities, where the destruction of property under control of the enemy is almost an inexorable result. At the same time, the application of Article 53 of the Fourth Geneva Convention to objects under the control of an invading power offers protection from destruction to such property and is further reinforced by means of the grave breaches regime.

21However, it must also be noted that this interpretation is contrary to the recent interpretation of the functional beginning of belligerent occupation theory by the ICTY. In the Naletilić case, the ICTY accepted that “for the purposes of individuals’ rights, a state of occupation exists upon their falling into ‘the hands of the occupying power’”,297 but required a state of occupation as defined in Article 42 of the 1907 Hague Regulations for the destruction of property outlawed by Article 53 of the Fourth Geneva Convention.298

5. Requisition of hospitals - Article 57 of the Fourth Geneva Convention

22Under the 1907 Hague Regulations, the requisition of hospitals in occupied territory is permitted in accordance with the general rule on requisition, that is to say that it is allowed only if it is for the needs of the occupying army and proportionate.299 Article 57 of the Fourth Geneva Convention has not changed this basic rule but has added some safeguards.300 The requisition of civilian hospitals must be temporary and only in cases of urgent necessity. Furthermore, the occupying power must make suitable arrangements in due time for the care and treatment of the patients and for the needs of the civilian population.301 These conditions are a “logical inference” from Article 56 of the Fourth Geneva Convention which provides that, inter alia, hospitals and their services must be maintained.302 In the same vein, the second paragraph of Article 57 of the Fourth Geneva Convention prohibits the requisition of material and stores of civilian hospitals “so long as they are necessary for the needs of the civilian population”.303

23Due to the absence of another provision that would govern the requisition of civilian hospitals and its material and stores during a phase prior to the establishment of a state of occupation according to its traditional meaning, the functional beginning of belligerent occupation theory would regulate and, to a certain degree, authorise an invading army to requisition civilian hospitals and resources for the treatment of its own sick and wounded. At the same time the invading army would be legally obliged to take into account the needs of the population within its sphere of control.

6. National Red Cross organisations and other relief societies - Article 63 of the Fourth Geneva Convention

24Article 63 of the Fourth Geneva Convention is of paramount importance for the work of National Red Cross organisations and other relief societies. It sets forth that recognised National Red Cross societies must be allowed to continue their activities in accordance with Red Cross principles, unless “urgent reasons of security” require temporary and exceptional measures put forward by the occupying power.304 Under similar conditions other relief societies must also be permitted to continue their humanitarian activities.305 Furthermore, the provision forbids an occupying power from requiring changes to the personnel or structure of these societies that would prejudice their humanitarian activities.306

25During an armed conflict the National Red Cross and other relief societies offer services of an inestimable value to the population affected by the armed conflict. The non-application of the functional beginning of belligerent occupation theory with regard to this provision could lead to a gap in protection. For such time as the invasion persists and a state of occupation in the traditional sense has not been established, there is no legal basis for the continued existence and work of National Red Cross organisations and other societies if they are within the sphere of control of the invading army. This could result in a “suspension” of their work and, ultimately, in more suffering for the local population. One should also note that, in accordance with Article 18 of the First Geneva Convention, military authorities shall permit the spontaneous collection and care of sick and wounded persons belonging to the armed forces by other inhabitants and by relief societies.307

26Moreover, the functional beginning of belligerent occupation theory offers a win-win situation: National Red Cross organisations and other relief societies in the hands of the enemy power would have a legal basis for the continuance of their work, which benefits the local population. On the other hand, the invading army could profit from the work of these societies, eventually helping the invading power to comply with its duties vis-à-vis the local population,308 and yet the invading army would retain a legal basis to suspend the work of these organisations through “temporary and exceptional measures imposed for urgent reasons of security”.309