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The Functional Beginning of Belligerent Occupation

Michael Siegrist

Executive Summary

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1Occupation of foreign territory by means of warfare can be traced back to ancient times. An important step towards the codification of the modern law of belligerent occupation was achieved with the Lieber Code of 1863. The notion and definition of belligerent occupation continued to evolve, the next stage of its development culminating in the Hague Regulations of 1907.  The central idea that part of a belligerent State’s territory has de facto been brought under the effective control of the hostile armed forces of another Party to the armed conflict lies at the heart of the definition of belligerent occupation in Article 42 of these regulations. For a state of belligerent occupation to be established, it is generally accepted that a certain degree of stability is required. Furthermore, the dominant conception of belligerent occupation follows a strict distinction between invasion and occupation, whereby the mere presence of armed forces does not itself establish a state of belligerent occupation.

2In 1949, the long awaited Fourth Geneva Convention put the emphasis on the protection of civilians in the hands of an enemy power and significantly elaborated on the law of belligerent occupation. However, for the sake of the law of belligerent occupation there seems to be an important imperfection: the 1949 Geneva Conventions do not contain any legal definition of belligerent occupation! A question therefore arises as to whether the provisions of the Fourth Geneva Convention relative to occupied territories apply only once the criteria of the 1907 Hague Regulations have been met or, as suggested in the ICRC Commentary, that they apply in accordance with the “functional beginning” of belligerent occupation from the moment that a protected person finds him or herself in the hands of the enemy. It is argued that the preferred solution is the latter. A distinction between invasion and a state of belligerent occupation would be superfluous because the 1949 Geneva Conventions would follow their own rules of applicability. Without the functional concept intolerable gaps in protection would exist during the invasion phase. An analysis of the provisions of the Fourth Geneva Convention relative to belligerent occupation reveals that the functional beginning approach is realistic and would not impose burdensome and unfeasible obligations upon already constrained troops. The rules formulating the rights and obligations of an occupying power are flexible enough to take the necessities arising during invasion into account while maximising the protection of the local population.


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