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The Functional Beginning of Belligerent Occupation

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Michael Siegrist

Part B: Feasibility of the Application of the Functional Beginning of Belligerent Occupation Theory

V. Positive and negative obligations due to the mere fact of occupation

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1. Maintaining law and order - Article 43 of the 1907 Hague Regulations

1Although Article 43 of the 1907 Hague Regulations does not necessarily fall within the ambit of the functional beginning of belligerent occupation, the article is of such importance for the regime of belligerent occupation that it seems nevertheless appropriate to assess the feasibility of an application already before a state of belligerent occupation has been established. Maintaining public order and safety is one of the primary tasks of an occupying power and might also be the most challenging one.

2In its English translation, Article 43 of the 1907 Hague Regulations lays down that:

 “[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his 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.”

3By contrast, the authentic French text of Article 43 of the 1907 Hague Regulations reads:

“[l]’autorité du pouvoir légal ayant passé de fait entre les mains de l’occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d’assurer, autant qu’il est possible, l’ordre et la vie publics en respectant, sauf empêchement absolu, les lois en vigueur dans le pays.”

  • 338  Dinstein, The International..., at p. 89.
  • 339  Sassòli, Legislation..., at p. 663 onwards.

4The two versions differ particularly with relation to the expression “public order and safety”. The authoritative French text does not mention safety, but refers to “ordre et vie publics” which includes also social and economic aspects of community life and hence is much broader than the English version.338 There is a tendency to accept that the scope of Article 43 of the 1907 Hague Regulations extends to “civil life” and therefore would encompass not only “public safety” but also other aspects of daily life.339

  • 340  See Article 43 of the 1907 Hague Regulations.

5Article 43 of the 1907 Hague Regulations imposes two obligations upon an occupying power. The first one requires the occupying power to restore and ensure, as far as possible, “public order and life”. The occupying power’s leeway, however, is restricted by the second obligation, which requires the occupying power to respect the laws in force “unless absolutely prevented”.340 Both obligations are thus not absolute and their qualifications allow for certain flexibility.

  • 341  See Dinstein, The International..., at p. 91.
  • 342  Dinstein, The International..., at p. 92.
  • 343  See Sassòli, Legislation..., at p. 664 onwards; Dinstein, The International..., at p. 92.

6The maintenance of “public order and life”, while respecting the existing law, is a complex and multifaceted task. The executive branch of the military government is responsible for restoring and ensuring “public order and life”, which therefore requires it to take affirmative measures in order to comply with its duties.341 The purpose of the obligation to maintain “public order and life” is to protect the population of an occupied territory from “a meaningful decline in orderly life” even if the military government is not (seriously) affected or put at risk.342 The obligation to restore and ensure “public order and life” is an obligation of means, that is to say, the occupying power must take reasonable steps in order to achieve the goal prescribed.343

  • 344  UK Manual, at para. 11.3.

7The application of Article 43 of the 1907 Hague Regulations pursuant to the traditional interpretation of belligerent occupation presupposes that the invading power has established a state of belligerent occupation, that is to say the former legal sovereign cannot publicly exercise its authority anymore and the occupying power is in a position to substitute its own authority for that of the former legal sovereign.344

8Yet, as the invasion of Iraq in 2003 has shown, the presence of foreign troops may lead to riots and civil commotion or marauding groups already before a state of belligerent occupation has been established. If one follows a strict separation of invasion and belligerent occupation, the invasion troops would not bear any responsibilities as to the maintenance of “public order and life”. Admittedly, this positive obligation requires a minimum degree of authority and power. It must be at least able to impose its will. An approach which would require a State to comply with Article 43 of the Hague Regulations even though it has not gained full control would seem to be unfair and impracticable.

  • 345  Article 27(4) of the Fourth Geneva Convention.

9The qualifying expression “as far as possible” contained in Article 43 of the 1907 Hague Regulations, however, underlines the conduct-oriented aspect of the obligation to restore and maintain “public order and life”. One can easily contemplate foreign troops storming a village and hence suspending the exercise of authority by the legal sovereign. As such, this would not yet constitute belligerent occupation understood in the traditional sense. Yet, the present troops, vested with de facto authority, would be in a position to take proper and feasible steps to protect the population of a village that is in their power. At the least, the foreign troops would be able to take “measures of control and security”345 applicable at all times with regard to protected persons. To address an economy in shambles or a social breakdown causing distress to the civilian population would evidently presuppose a consolidated and continuous occupation of territory.

10One can thus conclude that once a foreign army has gained control over a territory and its inhabitants, that is to say active hostilities in the area have ceased, and the armed forces are able to impose their will, compliance with the obligation to restore and maintain “public order and life” seems possible. If the ambit of the functional beginning of belligerent occupation encompassed the rules of Section III of the 1907 Hague Regulations, the invading troops would have a legal obligation to work towards the maintenance of public order and life as soon as they are in a position to impose their will.

  • 346  See Article 43 of the 1907 Hague Regulations.

11Furthermore, invading troops would have to immediately respect, “unless absolutely prevented” from doing so, the domestic law in force.346 This second obligation of Article 43 of the 1907 Hague Regulations is a negative duty, which even permits exceptions. Therefore, no serious reasons prevent an application of this provision from the invasion phase onwards.

2. Special cases of repatriation - Article 48 of the Fourth Geneva Convention

  • 347  See Article 48 of the Fourth Geneva Convention.
  • 348  See Article 35 of the Fourth Geneva Convention.

12Pursuant to Article 48 of the Fourth Geneva Convention, protected persons who are not nationals of the occupied territory may avail themselves of the right to leave the territory subject to the provisions of Article 35 of the Fourth Geneva Convention.347Subject to certain qualifications, the right to leave a territory at the outset of, or during a conflict, is already granted to aliens in the territory of a party to the conflict.348 The advancement of enemy troops, however, may impede the procedure instituted by the legal sovereign of the invaded State. Stringent requirements on the establishment of a state of belligerent occupation within the traditional meaning could result in protected person being “stranded” for as long as it takes either the legal sovereign to regain control or the invading power to consolidate its authority over a certain territory. Yet, there seems to be no objective reason why protected persons who are neither nationals of the occupied country nor of the occupying power or its allies should be prevented from leaving the territory as soon as possible upon the arrival of foreign troops.  

  • 349  See Article 48 of the Fourth Geneva Convention; Pictet, Commentary..., Article 48, at p. 277.
  • 350  Article 48 in combination of Article 35(1) of the Fourth Geneva Convention.
  • 351  See Pictet, Commentary..., Article 35, at p. 236.
  • 352  See Article 35(2) of the Fourth Geneva Convention.

13The text of Article 48 of the Fourth Geneva Convention stipulates that the decision whether a protected person may leave must be made through a procedure instituted by the occupying power.349 For the applicable procedure the article refers to Article 35 of the Fourth Geneva Convention requiring “regularly established procedures”.350The Commentary explains that this expression would require procedural safeguards preventing arbitrariness, including previously-specified conditions under which permission to depart is granted and also the appointment of a responsible authority.351 In order to comply with the functional beginning of belligerent occupation theory, a military commander, for example, could decide as a first instance whether or not the application to leave made by a protected person in the power of the advancing troops should be granted. In case of refusal, an “appropriate court or administrative board” would have to review, as soon as possible, the decision taken by the military commander.352 The time until such a procedure is established depends upon the capabilities of the occupying power and the situation at hand. The necessary control and authority over a territory is certainly less exacting for a decision of first instance than it is for the review. Applying these rules relating to the application for the right to leave the occupied territory in accordance with the functional beginning of belligerent occupation theory would therefore not unreasonably burden the invading troops.

3. Children - Article 50 of the Fourth Geneva Convention

  • 353  See Pictet, Commentary..., Article 50, at p. 286.

14The first paragraph of Article 50 of the Fourth Geneva Convention obliges an occupying power to facilitate, with the co-operation of national and local authorities, the proper working of all institutions devoted to the care and education of children. Hence, an occupying authority must not only respect the existing institutions within the territory it occupies and their activities, but is also bound to support them so that they can fulfil their work.353 While the obligation to respect local institutions devoted to the care and education of children and their work does not require any form of control or authority over foreign territory, the obligation to support these institutions might require a certain degree of control and authority. Yet the kind of support required may be manifold and whether the foreign power can actually provide that support will depend upon the circumstances and the capabilities of the invading troops. Furthermore, supporting these institutions is an obligation of means, meaning that it only requires that the invading troops do whatever is feasible towards the proper working of institutions devoted to the care and education of children.  

  • 354  Article 50(2) of the Fourth Geneva Convention.
  • 355  Ibid.
  • 356  See Article 50(4) of the Fourth Geneva Convention.
  • 357  See Article 136(1) of the Fourth Geneva Convention.
  • 358  See Pictet, Commentary..., Article 50, at p. 287.
  • 359  Ibid., at p. 289.

15In accordance with the second paragraph of Article 50 of the Fourth Geneva Convention the occupying power has to take “all feasible steps to facilitate the identification of children and the registration of their parentage” and it may neither alter their personal status, nor enlist them in formations or organisations subordinate to it.354 By contrast to the third paragraph of Article 24 of the Fourth Geneva Convention, the occupying power has a legal obligation to take action in order to identify children and to register their parentage.355This work shall be supported by the Information Bureau set up in accordance with Article 136 of the Fourth Geneva Convention.356 This Information Bureau must be established at the outbreak of a conflict (and in all cases of occupation).357 Therefore, no further action in the occupied territory is needed. The application of the second paragraph of Article 50 of the Fourth Geneva Convention in accordance with the functional beginning of belligerent occupation theroy thus requires only a modest level of control over foreign territory and presents no unreasonable burden. First of all, the invading troops should, in principle, be able to rely upon the normal working of the local administrative services responsible for the identification of children, with the former’s primary obligation is not to impede with the work of the latter.358 The occupying power will only have to co-operate and open a special section of the Information Bureau in occupied territory if the local authorities cannot establish the identity of a child.359 Therefore, the invading troops only need to be in a position to interview children and other people in order to gather the necessary information that they then can transfer to their Information Bureau.

  • 360  Pictet, Commentary..., Article 50, at p. 288.
  • 361  Article 50(2) second sentence of the Fourth Geneva Convention.
  • 362  See Pictet, Commentary..., Article 50, at p. 288.

16The obligation to refrain from altering the status or nationality of children set out in the second paragraph of Article 50 (second sentence) of the Fourth Geneva Convention is a valuable addition “to the essential principles enjoining respect for the human person and for family rights” as set out in Article 27 of the Fourth Geneva Convention.360 Furthermore, it outlaws the enlistment of children into “formations and organisation subordinate to [the occupying power]”.361This clause deals with the enlistment into political movements and the like, not the recruitment into the armed forces which is covered by the first paragraph of Article 51 of the Fourth Geneva Convention.362

  • 363  See Article 50(3) of the Fourth Geneva Convention.

17The third paragraph of Article 50 of the Fourth Geneva Convention requires an occupying power to make arrangements for the maintenance and education of orphans and children separated from their parents if the local institutions should be inadequate.363 At first, this paragraph seems to contain a duty to provide that presents an unreasonable burden for invading troops. It should be noted, however, that in accordance with Article 24 all parties to a conflict have a general obligation to:

  • 364  See Article 24(1) of the Fourth Geneva Convention.

“[...] take all measures to ensure that children under fifteen, who are orphaned or separated from their families as a result of war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances.”364

  • 365  See Pictet, Commentary..., Article 50, at p. 288.

18Therefore, the primary responsibility to look after orphans and children separated from their families lies within the local authorities and they should have instituted an appropriate system. The third paragraph of Article 50 of the Fourth Geneva Convention just underlines that in the case of belligerent occupation this primary responsibility remains with the local authorities and that an occupying power is only bound to take necessary steps once the local system has collapsed or is otherwise insufficient and no near relative or friend can provide for the maintenance and education of the children concerned.365 As was the case with the first paragraph discussed above, the third paragraph does not constitute a heavy burden for invading troops who need only take at least some steps to ensure the maintenance and education of orphans and children separated from their parents where the local authorities have failed in carrying out their duties. Hence, even invading troops should be absolved from taking care of such children.

19Finally, in expressing the basic rule that, unless absolutely prevented from doing so, the laws in force must be respected, the fifth paragraph of Article 50 states that an occupying power:

  • 366  Article 50(5) of the Fourth Geneva Convention.

“shall not hinder the application of any preferential measure in regard to food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years”.366

20Although changing the status of children or enlisting them into formations or organisations subordinate to the occupying power will most likely coincide with a rather consolidated authority over that territory, invading troops can comply with the prohibitions set out in Article 50 of the Fourth Geneva Convention from the outset of the armed conflict because of their negative nature.

4. Enlistment - Article 51(1) of the Fourth Geneva Convention

  • 367  Article 51(1) of the Fourth Geneva Convention.
  • 368  Pictet, Commentary..., Article 51, at p. 293.
  • 369  See Henckaerts/Doswald-Beck, Customary…, Rule 95, at p. 333.
  • 370  See Article 31 of the Fourth Geneva Convention.

21Under the first paragraph of Article 51of the Fourth Geneva Convention an occupying power must not “compel protected person to serve in its armed or auxiliary forces”, nor is it allowed to exert pressure or propaganda aimed at securing voluntary enlistment.367The first paragraph also covers the compulsory enlistment of children. The prohibition is based on the principle set out in Article 23(h) of the 1907 Hague Regulations stating that enemy nationals shall not be forced to “take part in the operations of war” against their own country. By contrast, the first paragraph of Article 51 of the Fourth Geneva Convention outlaws forced enlistment into the armed forces in general and is thus more restrictive. The Commentary is explicit that an occupying power is forbidden from resorting to forced enlistment “whatever the theatre of operations and whoever the opposing forces might be”.368 The scope of the prohibition set out in the first paragraph of the Fourth Geneva Convention is thus wider than in Article 23(h) of the 1907 Hague Regulations. Forced enlistment is a specific type of forced labour and its prohibition is part of customary international humanitarian law as well.369 Furthermore, it can be considered as an application of the general prohibition of coercion.370

  • 371  See Article 23(h) of the 1907 Hague Regulations.

22The obligation to refrain from such activities is not contingent upon the presence of an established occupation. Already during hostilities a party to the conflict is forbidden from compelling nationals of the adversary to take part in the operations of war against their own country.371 Taken together with Article 44 of the 1907 Hague Regulations and Articles 31 and 51(1) of the Fourth Geneva Convention, one can indisputably discern a conviction that such a practice must be outlawed. Furthermore, giving information to the invading army and, even more so, participating in operations of war directed against one’s own country, could be regarded as treason and presents an insoluble dilemma for the person concerned. It should be further noted that forced enlistment into the forces of a hostile power is listed among the grave breaches in Article 147 of the Fourth Geneva Convention, which underlines the importance of this prohibition.

23The prohibition of forced enrolment is thus a rule that must be applied under any circumstances and at all times. An application of this negative obligation in accordance with the functional beginning of belligerent occupation theory would not impose any additional duties upon invading forces. It would only reaffirm and reinforce the prohibition already existing with regard to the conduct of hostilities and extend it to all protected persons wherever they find themselves in the hands of the enemy forces, be it within or outside the areas where hostilities are conducted.  

5. Food and medical supplies for the population - Article 55 of the Fourth Geneva Convention

24Pursuant to the second paragraph of Article 54 of the 1977 Additional Protocol I “objects indispensable to the survival of the civilian population” shall not be attacked, destroyed, removed or rendered useless.

  • 372  See Article 55(1) of the Fourth Geneva Convention.

25The first paragraph of Article 55 of the Fourth Geneva Convention requires the occupying power to ensure, to the fullest extent of the means available to it, a sufficient provision of food and medical supplies for the population.  This potentially includes the duty to import needed articles in case of inadequate resources within the occupied territory.372. The provision thus extends and reinforces the general obligation to allow the free passage of medical supplies, food and clothing as well as the facilitation of relief schemes laid down in Articles 23 and 59 of the Fourth Geneva Convention.

  • 373  Article 55(1) of the Fourth Geneva Convention.
  • 374  Pictet, Commentary..., Article 55, at pp. 309 and 310.

26In particular the duty to provide food and medical supplies may seem, at first sight, irreconcilable with the difficulties an invading army experiences. The qualification “to the fullest extent of the means available”,373 however, precisely takes into account the difficulties an invading army and occupying power might face. Furthermore, the Fourth Geneva Convention does not fix the method by which the needed articles are imported. It should be noted, as the Commentary highlights, that the “spirit behind Article 55 represents a happy return to the traditional idea of the law of war, according to which belligerents sought to destroy the power of the enemy State, and not individuals”.374

27For the above reasons, the duty to ensure food and medical supplies for the population laid down in this paragraph is thus not diametrically opposed to an application in accordance with the functional beginning of belligerent occupation theory. All an invading army is asked to do is to work towards sufficient provisions for the population that finds itself within its sphere of control.

  • 375  See Article 55(2) first sentence of the Fourth Geneva Convention.
  • 376  See Article 55(2) second sentence of the Fourth Geneva Convention.
  • 377  Article 147 of the Fourth Geneva Convention.

28The second paragraph of Article 55 of the Fourth Geneva Convention regulates the requisition of foodstuffs, articles or medical supplies available in the occupied territory, that is to say goods that may be essential to life. It is an elaboration of the general rule on requisitions in kind and services laid down in Article 52 of the 1907 Hague Regulations. The requisition of such items is only permitted for the use of the occupation forces and administrative personnel, and that only after the needs of the population have been taken into account.375 Furthermore, the occupying power must ensure that fair compensation is paid for requisitioned goods.376 It should also be noted that “extensive appropriation of property, not justified by military necessity”, which includes requisitions, is a grave breach of the Fourth Geneva Convention.377

  • 378  Article 52(1) of the 1907 Hague Regulations.
  • 379  Article 55(2) of the Fourth Geneva Convention.
  • 380  See Article 14 of the Lieber Code defining military necessity as "the necessity of those measures (...)

29During hostilities, Article 23(g) of the 1907 Hague Regulations permits the seizure of the enemy’s property if it is “imperatively demanded by the necessities of war”. This reservation seems to be fairly broad if compared to the qualifications applicable in occupied territories, limiting requisitions to those for “the needs of the army of occupation”378 or for “the use by the occupation forces and administration of personnel”.379 Significantly, the necessity test contained in the provision of the 1907 Hague Regulations applicable during hostilities does not require a belligerent to consider the requirements of the civilian population.380 The provision of the Fourth Geneva Convention is thus more restrictive than Article 23(g) of the 1907 Hague Regulations. Since the second paragraph of Article 55 of the Fourth Geneva Convention covers goods that may be essential for life, it would seem appropriate to apply it to all situations on foreign territory and outside the theatre of hostilities. This interpretation would prevent possible gaps in protection and would ensure that the needs of the population must be considered before resorting to requisitions of these essential goods.

6. Hygiene and public health - Article 56 of the Fourth Geneva Convention

  • 381  See Article 56(1) first sentence of the Fourth Geneva Convention.
  • 382  Pictet, Commentary..., Article 56, at p. 313.
  • 383  Ibid.
  • 384  See Article 51(2) of the Fourth Geneva Convention.
  • 385  See Article 56(1) second sentence of the Fourth Geneva Convention.
  • 386  See Article 57 of the Fourth Geneva Convention.

30Article 56 of the Fourth Geneva Convention requires an occupying power to ensure and maintain, to the fullest extent of the means available to it and with the co-operation of national and local authorities, medical and hospital establishments and services, public health and hygiene. Particular reference is made to “prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics”.381 As the Commentary stresses, the duty to organise hospitals and health services and the taking of measures to control epidemics are “above all [...] for the competent services of the occupied territory itself”.382 As long as the national authorities are able to fulfil these tasks, the occupying power is merely required not to hamper their work.383 The author sees no reasons why the functional beginning of belligerent occupation theory should not apply in such cases. Only when hospitals and medical services are not properly functioning will the occupying power be required to provide services, and these only according to the means available to it. As was the case with regard to the first paragraph of Article 55 of the Fourth Geneva Convention discussed above, the application of the duty to ensure and maintain the medical and hospital establishments and medical and services seems, at worst, to present a minimal additional burden. In order to comply with this obligation invading forces could also resort, in accordance with Article 51 of the Fourth Geneva Convention, to compelling protected persons to work for it.384 Furthermore, the obligation to permit “medical personnel of all categories [...] to carry out their duties”385 can also be considered as a means of ensuring and maintaining the hospitals and medical services and establishments, public health and hygiene and benefits, eventually, the invading forces. Finally, one can consider this obligation to represent a fair correlative to the right to requisition civilian hospitals.386 For all these reasons, the application of this paragraph in accordance with the functional beginning of belligerent occupation theory seems warranted.

31The second paragraph of Article 56 of the Fourth Geneva Convention addresses the issuance of documents according recognition and granting the right to display the Red Cross emblem to newly set up hospitals and the distribution of identity cards to its staff. Should an invading army be present on foreign territory and the newly set up hospitals and their staff unable to get the required documents from the competent body of the occupied State, it seems only natural that the power who controls the area concerned should assume this task.

32The last paragraph of Article 56 of the Fourth Geneva Convention calls for the respect of moral and ethical susceptibilities of the population of the occupied territory where the occupying power adopts health or hygiene measures. As such it reiterates the principles set out in Article 27 of the Fourth Geneva Convention. The author beliefs that instructions given to the troops with regard to their behaviour abroad should already include the moral and ethical susceptibilities of the enemy population. Therefore, nothing stands in the way of applying the third paragraph of Article 56 of the Fourth Geneva Convention as soon as invading troops take such health and hygiene measures aimed at the population of the foreign territory.

7. Spiritual assistance - Article 58 of the Fourth Geneva Convention

  • 387  Article 58(1) of the Fourth Geneva Convention.
  • 388  See Articles 27(4) and 78 of the Fourth Geneva Convention.

33That religious convictions and practice must be respected was already laid down in the first paragraph of Article 46 of the 1907 Hague Regulations and was reiterated in Article 27 of the Fourth Geneva Convention. According to the first paragraph of Article 58 of the Fourth Geneva Convention, an occupying power “shall permit ministers of religion to give spiritual assistance to members of their religious communities”.387 Why should such a precious assistance to the troubled population be protected only after hostilities have ceased and a state of occupation within the traditional meaning has been established? The only conceivable reason would be the security of the invading army. As long as such fears are absent there is no plausible explanation why spiritual assistance should not be permitted pursuant to the functional beginning of belligerent occupation. Should ministers of religion present a security threat in a concrete case, the invading force could still take measures of control and security.388

  • 389  See Article 58(2) of the Fourth Geneva Convention.

34By contrast, the acceptance of religious books and articles and particularly the facilitation of their distribution389 might require some consolidated control over foreign territory. Eventually, compliance with this obligation will depend upon the degree of control exercised by the invading army and its logistical means.

8. Collective Relief: Articles 59 to 61 of the Fourth Geneva Convention

  • 390  See Article 59(1) of the Fourth Geneva Convention.
  • 391  Pictet, Commentary..., Article 59, at p. 320.

35Hostilities often lead to scarcities of foodstuffs and other essential supplies, leaving the civilian population of an affected territory very vulnerable. Once the territory is occupied the occupying power must agree to relief schemes and facilitate them if at least part of the civilian population is inadequately supplied.390 While the duties to provide laid down in Articles 55 and 56 of the Fourth Geneva Convention are contingent upon the means available to the occupying power, the obligation of Article 59 of the Fourth Geneva Convention to accept collective relief is “unconditional”.391

  • 392  See Article 23 of the Fourth Geneva Convention.
  • 393  See Article 59(4) of the Fourth Geneva Convention.
  • 394  See Pictet, Commentary..., Article 23, at p. 181.
  • 395  See Articles 60 and 61 of the Fourth Geneva Convention respectively.

36The principle of free passage of consignments of a humanitarian character is already set out in Article 23 of the Fourth Geneva Convention under the heading General protection of populations against certain consequences of war. One could thus argue that the general provision of Article 23 of the Fourth Geneva Convention would appropriately regulate humanitarian relief. However, the safeguards of the latter article relate primarily to the prevention of a definite advantage of the enemy and other beneficiaries,392 whereas the safeguards of Article 59 of the Fourth Geneva Convention aim to prevent the occupying power from using consignments for its own benefit.393 Moreover, while Articles 59 to 61 of the Fourth Geneva Convention are more limited in scope,394 they regulate in a more detailed manner the responsibilities of the occupying power as well as the distribution of the consignments.395

  • 396  See Article 59(1) of the Fourth Geneva Convention.
  • 397  Pictet, Commentary..., Article 59, at p. 320.
  • 398  See Article 60 of the Fourth Geneva Convention.

37After all, the provisions on collective relief essentially impose only minimal further obligations on the invading power. Facilitation of relief schemes “by all the means available at its [the occupying power’s] disposal”,396 can be achieved by using manifold means such as transport, stores, facilities for distributing and supervising agencies.397 An application of the functional beginning of belligerent occupation theory in this context would even give the invading power the possibility to divert consignments in the interests of the population of the occupied territory, in exceptional circumstances.398 To the extent that an invading army already controls a certain area or has parts of the foreign population within its power, applying Articles 59 to 61 of the Fourth Geneva Convention in accordance with the theory of the functional beginning of belligerent occupation, coupled with Article 23 of the Fourth Geneva Convention, seems to be possible and would alleviate the suffering of the population affected by war.

9. Individual Relief: Article 62 of the Fourth Geneva Convention

38What has been said above regarding collective relief is generally true for individual relief governed by Article 62 of the Fourth Geneva Convention as well. The provision on individual relief, however, confers the occupying power the right to refuse individual relief consignments in case of “imperative reasons of security”. The application of the functional beginning of belligerent occupation theory would hence be favourable to the invading army, which would be strengthened in terms of the means they would have to verify individual relief consignments.

Notes

338  Dinstein, The International..., at p. 89.

339  Sassòli, Legislation..., at p. 663 onwards.

340  See Article 43 of the 1907 Hague Regulations.

341  See Dinstein, The International..., at p. 91.

342  Dinstein, The International..., at p. 92.

343  See Sassòli, Legislation..., at p. 664 onwards; Dinstein, The International..., at p. 92.

344  UK Manual, at para. 11.3.

345  Article 27(4) of the Fourth Geneva Convention.

346  See Article 43 of the 1907 Hague Regulations.

347  See Article 48 of the Fourth Geneva Convention.

348  See Article 35 of the Fourth Geneva Convention.

349  See Article 48 of the Fourth Geneva Convention; Pictet, Commentary..., Article 48, at p. 277.

350  Article 48 in combination of Article 35(1) of the Fourth Geneva Convention.

351  See Pictet, Commentary..., Article 35, at p. 236.

352  See Article 35(2) of the Fourth Geneva Convention.

353  See Pictet, Commentary..., Article 50, at p. 286.

354  Article 50(2) of the Fourth Geneva Convention.

355  Ibid.

356  See Article 50(4) of the Fourth Geneva Convention.

357  See Article 136(1) of the Fourth Geneva Convention.

358  See Pictet, Commentary..., Article 50, at p. 287.

359  Ibid., at p. 289.

360  Pictet, Commentary..., Article 50, at p. 288.

361  Article 50(2) second sentence of the Fourth Geneva Convention.

362  See Pictet, Commentary..., Article 50, at p. 288.

363  See Article 50(3) of the Fourth Geneva Convention.

364  See Article 24(1) of the Fourth Geneva Convention.

365  See Pictet, Commentary..., Article 50, at p. 288.

366  Article 50(5) of the Fourth Geneva Convention.

367  Article 51(1) of the Fourth Geneva Convention.

368  Pictet, Commentary..., Article 51, at p. 293.

369  See Henckaerts/Doswald-Beck, Customary…, Rule 95, at p. 333.

370  See Article 31 of the Fourth Geneva Convention.

371  See Article 23(h) of the 1907 Hague Regulations.

372  See Article 55(1) of the Fourth Geneva Convention.

373  Article 55(1) of the Fourth Geneva Convention.

374  Pictet, Commentary..., Article 55, at pp. 309 and 310.

375  See Article 55(2) first sentence of the Fourth Geneva Convention.

376  See Article 55(2) second sentence of the Fourth Geneva Convention.

377  Article 147 of the Fourth Geneva Convention.

378  Article 52(1) of the 1907 Hague Regulations.

379  Article 55(2) of the Fourth Geneva Convention.

380  See Article 14 of the Lieber Code defining military necessity as "the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war".

381  See Article 56(1) first sentence of the Fourth Geneva Convention.

382  Pictet, Commentary..., Article 56, at p. 313.

383  Ibid.

384  See Article 51(2) of the Fourth Geneva Convention.

385  See Article 56(1) second sentence of the Fourth Geneva Convention.

386  See Article 57 of the Fourth Geneva Convention.

387  Article 58(1) of the Fourth Geneva Convention.

388  See Articles 27(4) and 78 of the Fourth Geneva Convention.

389  See Article 58(2) of the Fourth Geneva Convention.

390  See Article 59(1) of the Fourth Geneva Convention.

391  Pictet, Commentary..., Article 59, at p. 320.

392  See Article 23 of the Fourth Geneva Convention.

393  See Article 59(4) of the Fourth Geneva Convention.

394  See Pictet, Commentary..., Article 23, at p. 181.

395  See Articles 60 and 61 of the Fourth Geneva Convention respectively.

396  See Article 59(1) of the Fourth Geneva Convention.

397  Pictet, Commentary..., Article 59, at p. 320.

398  See Article 60 of the Fourth Geneva Convention.

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