Version classiqueVersion mobile

The Functional Beginning of Belligerent Occupation

Michael Siegrist

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

VI. Conclusion Part B

Texte intégral

1Two arguments are commonly brought forward to call into question the application of provisions relative to occupied territories in accordance with the functional beginning of belligerent occupation. First, it is often contended that the functional beginning of belligerent occupation theory would not be necessary because a strict distinction between invasion and a state of belligerent occupation does not create a gap in protection. The existing rules alongside those on belligerent occupation, it is argued, are perfectly sufficient for dealing with the exigencies of an invasion. Second, it is averred that the application of the rules on belligerent occupation during the invasion would impose burdensome and unfeasible obligations upon already constrained troops. The challenging and often tumultuous period of invasion, it is suggested, would leave no room to deal with the majority of these rules.

2The analysis of Part B of the present paper, however, has shown that these assertions and concerns can easily be refuted. As regards the second contention against an application of the functional beginning of belligerent occupation theory, one can note that the provisions of the Fourth Geneva Convention, for which the functional beginning of belligerent occupation theory is mainly designed, find the right balance between necessity and humanity. Necessity has been taken into account with regard to provisions imposing positive obligations upon a party to the conflict in that they usually leave the parties with some leeway as to how they can achieve their duties or, are obligations of means, which takes into account the circumstances and the means available to the party to the conflict. Humanity, on the other hand, ensures that fundamental rights and safeguards cannot be abrogated. It is noteworthy that the relevant provisions are often of a negative nature and hence do not require invading forces to provide anything. All these rules are based on the principle underlying the whole 1949 Geneva Conventions: the axiom of respect for the person!

3It has also been shown that many provisions of the Fourth Geneva Convention relating to occupied territories govern issues of paramount concern for the local population that are not otherwise, or at least insufficiently, addressed in other branches of IHL. This is the case, for instance, for both the provisions offering general protection (Articles 13 to 26 of the Fourth Geneva Convention) and those common to the territories of a party to the conflict and occupied territories (Articles 27 to 34 of the Fourth Geneva Conventions). The above analysis clearly reveals that not applying the functional beginning approach results in serious gaps in protection, which in itself warrants the promotion of this humanitarian interpretation of the law of belligerent occupation.


Le texte seul est utilisable sous licence CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.


Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search