1. Historical Background

1The First World War already made clear that the few provisions on civilians in the 1907 Hague Regulations were inadequate for their protection. This prompted the International Committee of the Red Cross to propose a project dealing with the fate of civilians and servicemen at the same time. Yet, against the backdrop of a “young” League of Nations engaged in the quest for eternal peace, the powers considered that the creation of a convention dealing with the status of civilians in wartime would be inappropriate. Consequently, the Diplomatic Conference of 1929 discussed the treatment of servicemen only.77 A draft of the “Civilian Convention” was nonetheless adopted in 1934 on the occasion of the International Conference of the Red Cross in Tokyo. However, the outbreak of the Second World War prevented the convening of a Diplomatic Conference and thus frustrated the conclusion of an international convention. In particular, civilians in occupied territory were left without adequate protection and faced horrendous practices during the Second World War; crowds of civilians being deported to faraway camps where they went through incredible suffering and where many among them met with a ghastly death. The nightmare of the Second World War should become the birth of the Geneva Conventions as we know and apply them until today. The Diplomatic Conference held at Geneva in 1949 resulted in three revised Conventions78 and the long awaited Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (hereafter: Fourth Geneva Convention).79

2The 1949 Geneva Conventions have revolutionised contemporary international humanitarian law, particularly as regards the treatment of civilians. In addition, the Fourth Geneva Convention clearly elaborated the law of occupation. While the 1907 Hague Regulations were intended to regulate relations between States, and hence focused on the rights and duties a State acquires by occupying an enemy territory during war, the Fourth Geneva Convention was concerned with the rights of individuals and puts the emphasis on the protection of civilians in the hands of an enemy power.80

2. Application of the Fourth Geneva Convention to Occupied Territories

2.1 Application ratione materiae

3Although the term “occupation” is mentioned only in the second paragraph of Article 2 common to the 1949 Geneva Conventions, most belligerent occupations are covered by virtue of the first paragraph of the provision. According to Article 2 paragraph 1, the four Geneva Conventions apply in all cases of declared war or armed conflict between two or more High Contracting Parties.81 Every belligerent occupation established as a consequence of an armed conflict, that is to say through the conduct of hostilities, or subsequent to a declaration of war is therefore covered by the first paragraph of Article 2 common to the 1949 Geneva Conventions. One groundbreaking development of the 1949 Geneva Conventions is that they also apply to cases where partial or total occupation meet with no armed resistance.82 The purpose of the second paragraph is thus solely to underline that the 1949 Geneva Conventions also apply in the special situation that neither hostilities nor a declaration of war have lead to the occupation of the territory of a State.83

2.2 Application ratione personae

a) General Aspects

4Most provisions of the Fourth Geneva Convention governing the treatment of civilians are contingent upon the notion of “protected persons”. Civilians not falling within that category still benefit from the protection of the general rules protecting “populations against certain consequences of war”84 and other fundamental guarantees,85 but almost exclusively protected persons qualify for “special” treatment in accordance with the rules on belligerent occupation laid down in the Fourth Geneva Convention.

5The legal concept of “protected persons” was introduced by the 1949 Geneva Conventions. Important prior instruments, such as the 1907 Hague Regulations, had been more concerned with governing the “military authority over the territory of the hostile State”86 and thus reflected the classical inter-State relationship of international law. As a result, rules directly governing the treatment of individuals are rather scarce. On the other hand, the 1907 Hague Regulations did not distinguish between different categories of civilians; they simply addressed “inhabitants of occupied territory” or the “population” in general, and distinguished between private and State property.87 With the adoption of the Fourth Geneva Convention the focus shifted, as its title suggests, from the inter-State relationship to “the protection of civilian persons in time of war”.88 This can be seen as convergence with human rights law and the Fourth Geneva Convention indeed protects individuals who are civilians against arbitrary action by the enemy.89

b) Definition of Protected Persons

6Pursuant to Article 4 of the Fourth Geneva Convention, protected persons are:

 “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”.90

7Excluded from the “protected persons” system of the Fourth Geneva Convention are individuals that are covered by one of the three other Geneva Conventions,91 and, in the case of normal diplomatic relations with the State in whose hands individuals may find themselves, nationals of a co-belligerent State in occupied or allied territory and nationals of a neutral State in the territory of a belligerent State.92

8Furthermore, the persons satisfying this nationality-test must find themselves “in the hands of a Party to the conflict or Occupying Power”.93 It is therefore crucial to clarify this expression. Note that the French text refers to persons who find themselves in the power (“au pouvoir”) of a party to the conflict or occupying power. Being “in the hands” of the enemy suggests that a party to the conflict exercises control over the person concerned.94 This is, without any doubt, the case when a person physically, or directly, is under the control of the enemy’s forces or authorities. Take arrested people or individuals working for the occupying power as an example. Yet, as the Commentary stresses, the expression “in the hands of” must be understood in “an extremely general sense”.95 Therefore, not only persons physically under the control of the enemy are protected persons; it suffices that the person is present in the territory of a party to the conflict or in occupied territory.96 Nor is it necessary that the foreign power has actually exercised authority over the protected person; all that is required is that the person comes within the sphere of control exercised by the occupying power.97 Otherwise, some authors argue, only detained or interned civilians would benefit from the protection of the Fourth Geneva Convention and, as a result, the latter instrument would be partly deprived of its protective content.98 This indirect form of being within the power of the enemy has also been adopted in recent case law.99 According to one author, the necessary control over the person has been established “when the physical, economic and social wellbeing of an individual are in the hands of a party to the conflict”.100

9Finally, the expression “at any given moment and in any manner whatsoever”101 underlines that the manner in which a person falls into the hands of the enemy does not matter. The purpose of the expression is to cover “all situations and cases”.102

10However, the scope of Article 4 of the Fourth Geneva Convention is not unlimited. No matter how broad the expression “in the hands of” may be interpreted, the provision is certainly not designed to protect civilians from the effects of hostilities.103 For the latter, one has to consult the rules concerning the conduct of hostilities set out in the Hague Conventions of 1907 and Additional Protocol I of 1977.

11One can thus conclude that as soon an adversary has control over a person or group of persons in accordance with Article 4 of the Fourth Geneva Convention the provisions relative to occupied territories are applicable.

2.3 Application ratione temporis - Does the Fourth Geneva Convention redefine the beginning of belligerent occupation?

12Because the 1949 Geneva Conventions do not contain a definition of belligerent occupation the question arises when the provisions relating to occupied territories laid down in the Fourth Geneva Convention begin to apply. It can be maintained that these rules apply only once a state of belligerent occupation in accordance with Article 42 of the 1907 Hague Regulations has been established. On the other hand the concept of protected persons is at the heart of the argument often put forward in favour of a broader scope of application with regard to the provisions relating to occupied territories.

a) Reliance upon the 1907 Hague Regulations?

13One way to deal with the lack of a definition of occupation in the Fourth Geneva Convention would be to rely upon Article 42 of the 1907 Hague Regulations as the key to the applicability of Section III of the Fourth Geneva Convention. In other words, those provisions of the Fourth Geneva Convention governing belligerent occupation are only applicable once the criteria of Article 42 of the 1907 Hague Regulations are met.104 It can be argued that this would be in line with an interpretation based on the ordinary meaning of a term in its context,105 and with Article 154 of the Fourth Geneva Convention, which states that the convention supplements in part the 1907 Hague Regulations.106 Furthermore, the 1949 Geneva Conventions themselves seem to distinguish between invasion and occupation.107 It should also be noted that many military manuals apply the rules on belligerent occupation only once a state of belligerent occupation within the meaning of Article 42 of the 1907 Hague Regulations has been established.108

14However, keeping the object and purpose of the Fourth Geneva Convention in mind, that is the protection of civilians, it seems that the beginning of belligerent occupation as set out in the 1907 Hague Regulations is too narrow. Besides the problem that invasion and belligerent occupation may be difficult to distinguish,109 such a distinction may also result in a decrease in the protection afforded to the civilian population. As long as the invading army has not established and affirmed, or is not willing to establish and affirm its control over the foreign territory the material conditions for the application of the law of belligerent occupation and its detailed protective provisions would not be satisfied. It is argued, however, that during this intermediate phase no gap of protection would exist because until a state of belligerent occupation is established the local population is still protected by the rules governing the conduct of hostilities and Articles 13 to 26 of the Fourth Geneva Convention offering general protection against certain consequences of war.110 Yet, it is particularly in cases where the invading troops interact with the local population, or take administrative measures against them, that these rules do not offer adequate protection. Moreover, the fundamental guarantees laid down in Articles 27 to 34 of the Fourth Geneva Convention would not apply to people in invaded territory if one followed a strict distinction between invasion and belligerent occupation.111 According to the travaux préparatoires, Part III of the Fourth Geneva Convention addresses “two situations presenting fundamental differences […]: that of aliens in the territory of a belligerent State and that of the population – national or alien – resident in a country occupied by the enemy”.112 Section I of Part III of the Fourth Geneva Convention (Articles 27 to 34) accordingly contains the rules common to these two situations only. A strict distinction between invasion and belligerent occupation would create an unacceptable gap of protection for some people at a phase when they are already extremely vulnerable,113 especially considering that the applicable rules do not address, for instance, the internment or deportations and transfers of protected persons. The drafters of the Fourth Geneva Convention must therefore have assumed that every protected person finds himself or herself either in the territory of an enemy State (as an alien) or in occupied territories.

15In order to overcome probable gaps of protection the US Army Field Manual proposes that the rules of the law of occupation should be observed, as far as possible, already before a situation amounts to belligerent occupation proper, that is to say, before the material criteria of application of the law of occupation have been fulfilled.114 The US Army Field Manual envisages this de facto application of the law of belligerent occupation for situations where troops are passing through enemy territory or even on the battlefield.115 Although this is a positive step in overcoming legal and protective gaps caused by a strict distinction between invasion and belligerent occupation, this approach leaves the applicability of the law of occupation unpredictable. The beginning as well as the decision regarding which rules apply would depend purely upon the will of the invading force.116

b) The functional beginning of belligerent occupation theory

16As seen above, civilians would benefit from less protection during the invasion period than the protection they would be afforded once occupation is established. With regard to some provisions a gap in protection would be created.117 It is thus possible that the Fourth Geneva Convention has modified the understanding of what constitutes belligerent occupation or follows another regime of applicability.

17In conjunction with Articles 2 and 6 of the Fourth Geneva Convention, the concept of protected persons elaborated in Article 4 thereof is the cornerstone of the theory of the functional beginning of belligerent occupation.118 This concept has been developed by the International Committee of the Red Cross (ICRC) in its Commentary on the Fourth Geneva Convention and advocates a wider meaning of the term “occupation” in the Fourth Geneva Convention than it has in the 1907 Hague Regulations.119 The Commentary draws attention to the fact that:

 “[s]o far as individuals are concerned, the application of the Fourth Geneva Convention does not depend upon the existence of a state of occupation within the meaning of the Article 42 [of the 1907 Hague Regulations] referred to above. The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation.”120

18According to the first paragraph of Article 6 of the Fourth Geneva Convention the convention applies “from the outset of any conflict or occupation mentioned in Article 2”. As seen above, Article 2 common to the Geneva Conventions defines the cases in which the Geneva Conventions are applicable, that is to say in cases of armed conflict, including subsequent belligerent occupation, and belligerent occupations meeting with no armed resistance. The first paragraph of Article 6 of the Fourth Geneva Convention, on the other hand, specifies when the Fourth Geneva Convention begins to apply. From that moment onwards the Fourth Geneva Convention applies to all protected persons.121 The expression “from the outset”122 should underline the fact that the Fourth Geneva Convention applies from the first act of violence onwards,123 which includes situations in which invading troops do not encounter armed resistance.124 As a consequence, the Fourth Geneva Convention “should be applied as soon as troops are in foreign territory and in contact with the civilian population there”.125 The functional approach thus proposes a new understanding of one of the constitutive elements of belligerent occupation,126 at least with regard to the applicability of the provisions contained in Section III of Part III of the Fourth Geneva Convention. In contrast to the 1907 Hague Regulations, which required the establishment of effective control over the enemy’s territory, Article 4 of the Fourth Geneva Convention suggests a broader interpretation as to when the rules on occupation set out in the Fourth Geneva Convention apply.127

19In line with the overall humanitarian character of the 1949 Geneva Conventions, the Fourth Geneva Convention generally focuses on the individual,128 granting protection to persons who, “at a given moment and in any manner whatsoever, find themselves [...] in the hands of a Party to the conflict or Occupying Power of which they are not nationals”.129 Effective control as understood in the Fourth Geneva Convention would therefore not relate to the territory and its authority, but rather to its inhabitants.130 In other words, the relationship between an invading power and “protected persons” is, for the functional beginning of belligerent occupation theory, the determining factor for the application of the provisions in the Fourth Geneva Convention relative to occupied territories. Accordingly, as soon as invading forces actually act in a manner, or enter into relationships with the local population, which are governed by Section III of the Fourth Geneva Convention, the law of belligerent occupation becomes applicable, even though not all elements required by Article 42 of the 1907 Hague Regulations have been established.131 In other words, the fact that in such cases the invading power acts, or is in the position to act, like an occupying power warrants the application of the law of belligerent occupation, even though this transitional stage might not represent a proper state of belligerent occupation.132 This is, at the least, true in so far as individuals are concerned and for the Fourth Geneva Convention.133

20This concept developed by the ICRC is called “functional beginning of belligerent occupation” because the provisions of the Fourth Geneva Convention applicable to occupation become applicable in a progressive manner and not en bloc. The Fourth Geneva Convention applies by degrees and in accordance with the nature and level of contact between the local population and the enemy troops; some provisions will thus apply immediately, others only at a later stage.134 The functional approach of occupation thereby results in a flexible and fluid regime which perfectly adapts to the complex situations occurring during the usually turbulent and unstable period beginning with the invasion of foreign territory.135 The duties and rights of an invading power would thus depend upon the kind of contacts the troops have with the local population and upon the powers they exercise.

21In the author’s view, it is important to stress already at this point that the functional approach to occupation does not conflict a priori with the overall aim of the invading troops, that is to say with the overcoming of the enemy.136 Once a state of belligerent occupation has been established, occupation and hostilities as a result of local resistance may co-exist. As one author points out, “the law of occupation and the law of hostilities are not mutually exclusive, but may apply in parallel to different activities occurring within the same territory at the same time”.137 Consequently, the conduct of hostilities with a view to establishing and maintaining military control over a territory would be governed by the paradigm of hostilities, while administrative measures adopted in order to maintain public order and life, as well as guaranteeing the security of the occupying forces would be governed by, what the authors calls the paradigm of law enforcement, which includes both the law of belligerent occupation and human rights law.138 When the acts of the invading troops relate to hostilities, the law on the conduct of hostilities represents the lex specialis and thus prevails over the law of belligerent occupation. As long as active fighting lasts, the relationship of the belligerents is governed by the rules relating to the conduct of hostilities. Once combatants or other persons taking a direct part in hostilities are captured or otherwise put hors de combat, the 1949 Geneva Conventions apply and individuals qualifying as protected persons must be treated accordingly. At the same time, the Geneva Conventions, and the provisions on belligerent occupation in particular, govern all other activities carried out by the invading troops on foreign territory. Through the application of the functional beginning of belligerent occupation theory the distinction between two distinct phases, invasion and belligerent occupation, thus becomes superfluous for at least the Fourth Geneva Convention. Instead, the circumstances of each case determine whether a provision relative to occupied territory or one on the conduct of hostilities applies.

22Furthermore, it should be noted that the law of belligerent occupation does not only restrain the occupant in its dealings with the local population through minimum rules, with most of which any power should easily be able to comply with, but it also leaves the occupant important powers to deal with the individuals under its authority.139 The law of belligerent occupation, for instance, offers the legal basis for the resort to measures related to security requirements or related to military operations.140 While these rules are of paramount importance during a state of belligerent occupation, they are even more important when hostilities are ongoing or the security situation has not yet been stabilised.141

3. The Relationship between the Fourth Geneva Convention and the 1907 Hague Regulations

23While the Fourth Geneva Convention has taken up some provisions of the 1907 Hague Regulations, others have been omitted or amended. Most prominently, even though Section III of Part III of the Fourth Geneva Convention exclusively deals with occupied territories, Article 42 of the 1907 Hague Regulations defining belligerent occupation and its beginning has not been taken up. As discussed above, the Fourth Geneva Convention follows its own rules of applicability even for the norms relating to occupied territories. This raises the question of whether the functional beginning of belligerent occupation theory also has repercussions on the application of Section III of the 1907 Hague Regulations. The following possibilities are conceivable:

1. The Fourth Geneva Convention, containing its own (broader) rules of application, is completely independent from the 1907 Hague Regulations and its definition of belligerent occupation. Both instruments follow a different notion of belligerent occupation and both instruments apply independently of each other; or

2. The new and broader rules of application put forward in the Fourth Geneva Convention have de facto enlarged the scope of application of the 1907 Hague Regulations.

24According to the Draft Convention approved by the 17th International Red Cross Conference (the Stockholm Draft), the Fourth Geneva Convention should have replaced the 1907 Hague Regulations in respect of matters which were dealt with in the newer instrument.142 Yet, the plenipotentiaries felt that it would be preferable to adopt a text that neither indicates any limitations between the two instruments nor establishes a hierarchy.143They chose a text according to which the Fourth Geneva Convention does not abrogate the 1907 Hague Regulations and instead is supplementary to the latter’s Sections II and III relative to hostilities and occupation.144 In case of potential divergences the plenipotentiaries envisioned that they “should be settled according to recognized principles of law, in particular according to the rule that a latter law superseded an earlier one”.145 This entails several interesting implications. First, since the Geneva Conventions follow their own rules of applicability, the 1907 Hague Regulations do not directly influence the application of the former.146 Second, in accordance with the principle of lex posterior derogat legi priori, the provisions of the 1907 Hague Regulations remain applicable to the extent that they have not been amended or elaborated upon in the Fourth Geneva Convention.147 In other words, the Fourth Geneva Convention derogates from provisions of the 1907 Hague Regulations only to the extent that those provisions have been stated differently or more precisely in the later text. The Fourth Geneva Convention has taken up most provisions of the 1907 Hague Regulations concerning the treatment of civilians in time of war in one way or another. With a few exceptions, the new provisions of the Fourth Geneva Convention have thus “entirely replaced the 1907 Hague Regulations”.148 With regard to the prohibition of pillage,149 for instance, the Fourth Geneva Convention omits the term “formally”, appearing in the text of Article 47 of the 1907 Hague Regulations in order to underline the absoluteness of the prohibition.150 Similarly, the Fourth Geneva Convention reinforced the prohibition of coercion151 by outlawing all forms of coercion no matter for what purpose.152 The cases where certain provisions have been completely omitted, on the other hand, raise more challenging questions as to the relationship between the two instruments. Kolb and Vité propose that even where provisions of the 1907 Hague Regulations do not appear in one way or another in the Fourth Geneva Convention, the former must be interpreted and, if necessary, modified in accordance with the new system of international humanitarian law of the latter.153 With regard to Article 42 of the 1907 Hague Regulations they advocate that the provision “doit dès lors être compris à la lumière des dispositions correspondantes de la Convention”,154the case notably of Article 2 common to the 1949 Geneva Conventions which has extended the material scope of applicability of the 1907 Hague Regulations by way of subsequent practice. If States complied with the functional beginning of belligerent occupation theory, and hence accepted through subsequent practice the broader scope of application of the provisions relating to belligerent occupation of the Fourth Geneva Convention, then this should consequently also enlarge the application of the 1907 Hague Regulations.155