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The Functional Beginning of Belligerent Occupation

Michael Siegrist

General Conclusion

Texte intégral

1Since the mid-19th century military powers and various writers have tried to define the notion of belligerent occupation and, in particular, the beginning thereof. While certain aspects such as the temporary nature and the principle of effectiveness have crystallised over the years, the seemingly straightforward definition contained in Article 42 of the 1907 Hague Regulations still presents a broad spectrum of unanswered questions. While many situations undoubtedly fulfil the legal definition of occupation, there are many others in which a state of occupation is more controversial or even denied. When is control so effective that an invasion turns into a state of belligerent occupation? What is the minimum area of a territory that can be occupied; a town, a hamlet, a house or what about a hill taken by the armed forces? The definition of the 1907 Hague Regulations and the interpretations found in different military manuals do not offer a solution that would allow us to determine with precision at what point territory is considered occupied and when the rules on belligerent occupation start to apply. Moreover, States deploying armed forces in another country often avoid, for various reasons, making reference to the term occupation because of the negative connotations that may be associated with it. All this creates uncertainty as to when the law of belligerent occupation begins to apply which, consequently, might entail serious consequences for the protection of the local population.

2The functional beginning of belligerent occupation theory, as advocated in the ICRC Commentary on the 1949 Geneva Conventions, is a humanitarian interpretation that frees the application of the rules relative to occupied territories contained in the Fourth Geneva Convention from the restraints of the Hague Regulations. It shifts the focus of the definition of belligerent occupation and the applicability of the respective rules from the territory to the individual, who becomes the decisive element. The provisions apply from the moment that a protected person is in the hands of the enemy; a distinction between invasion and a state of occupation has become superfluous.

3Admittedly, the functional beginning of belligerent occupation approach may seem to be an idealistic, and maybe even extensive, interpretation of the Fourth Geneva Convention, which at first sight runs contrary to the interests of potential occupying powers. At the same time, the present paper shows that the rules formulating the rights and obligations of an occupying power are flexible enough to take the necessities arising during an invasion into account while maximising the protection to the local population. It turns out that the functional beginning of belligerent occupation theory is more realistic than it seems. The law of belligerent occupation offers a vast array of answers to questions regarding the relationship between invading forces and the local population. Proceeding on the basis of the functional beginning of occupation theory could create greater legal certainty for both the invading forces and the local population.

  • 399  See Dörmann/Colassis, International…, at p. 301.

4Perhaps one should not understand the application of the provisions of the Fourth Geneva Convention generally applicable to occupied territories as actually representing a state of belligerent occupation, but rather see it as a sensible way to govern a situation, and the protection needs of civilians, that the law would otherwise not adequately address.399


399  See Dörmann/Colassis, International…, at p. 301.


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