1. ICJ, Armed Activities Case (2005)

1In the Case Concerning Armed Activities on the Territory of the Congo the ICJ adjudicated, inter alia, on the issue of belligerent occupation.156The Democratic Republic of the Congo asserted that, following attacks in border regions of eastern Congo between 7 and 8 August 1998, Ugandan troops occupied several provinces and violated provisions of the 1907 Hague Regulations and the Fourth Geneva Convention relating to occupied territory.157 In order to determine whether or not Uganda was an occupying power in the parts of the Congolese territory where its troops were present, the ICJ referred to the definition of belligerent occupation as set out in Article 42 of the 1907 Hague Regulations.158 It required that the authority of the hostile army “was in fact established and exercised by the intervening State in the areas in question [emphasis added]”.159 The ICJ thereby endorsed the view that the law of belligerent occupation as set out in the 1907 Hague Regulations and the Fourth Geneva Convention applies only once a state of occupation within the meaning of Article 42 of the 1907 Hague Regulations has been established. Furthermore, it would seem that the ICJ applied an even more restrictive test, as it not only required the establishment of authority but also that such authority is actually being exercised. This seems to be contrary to the text of Article 42 of the 1907 Hague Regulations which states “occupation extends only to the territory where such authority has been established and can be exercised [emphasis added]”.160

2While the ICJ in the Armed Activities case was convinced that Uganda established and exercised authority in Ituri district as an occupying Power,161 it concluded that the DRC had not provided specific evidence “to show that authority was exercised by Ugandan armed forces in any areas other than Ituri”.162 Accordingly, the ICJ deemed the presence of Ugandan troops at Kisangani Airport, where Uganda admittedly exercised “administrative control”, as insufficient to be characterised as a state of belligerent occupation.163

2. ICTY, Naletilić Case (2003)

3The Trial Chamber of the ICTY recently dealt with the definition and the beginning of belligerent occupation in the Prosecutor v. Mladen Naletilić and Vinko Martinović. Amongst other things, the Trial Chamber was confronted with cases of forced transfers and deportations, forced labour and wanton destruction. These incidents allegedly took place following the attacks of the Croatian Defence Council (HVO) on the villages of Sovići and Doljani, the city of Mostar and the village of Raštani between 17 April 1993 and January 1994.

4Given the absence of a definition of belligerent occupation in the Fourth Geneva Convention the Trial Chamber concluded that one has to turn to the 1907 Hague Regulations and endorsed the definition set out in Article 42 of the latter.164 The Trial Chamber further held that “[o]ccupation is defined as a transitional period following invasion and preceding the agreement on the cessation of the hostilities” and hence endorsed the traditional distinction between invasion and belligerent occupation described above.165

5While the Trial Chamber adopted the traditional understanding of the beginning of belligerent occupation, it also accepted, in referring to the Commentary of the Fourth Geneva Convention, “that the application of the law of occupation to the civilian population differs from its application under Article 42 of the 1907 Hague Regulations”.166 The Trial Chamber held that, as far as “protected persons” are concerned, a state of occupation existed upon their falling into “the hands of the occupying power”167 and “that the application of the law of occupation as it affects ‘individuals’ as civilians protected under Geneva Convention IV does not require that the occupying power have actual authority”.168 It concluded that this would hold true “regardless of the stage of hostilities” and that there would be “no further need to establish that an actual state of occupation as defined under Article 42 of the 1907 Hague Regulations existed”.169

6The Trial Chamber thus followed the functional beginning of occupation theory as far as individuals are concerned. As a result, the Trial Chamber ended up with two legal tests and notions of occupations: the functional beginning of belligerent occupation for dealings with individuals and the requirements for a state of belligerent occupation as defined under Article 42 of the 1907 Hague Regulations for dealings “with property and other matters”.170

3. Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission (2004)

7In accordance with Article 5 of the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, done at Algiers on the 12 December 2000 (hereafter: December Agreement), the Eritrea-Ethiopia Claims Commission (the Commission) had to adjudicate claims for loss, damage or injury that were related to the conflict between the two States and resulted from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.171

8The two parties disagreed on, inter alia, whether the provisions of the Fourth Geneva Convention relative to occupied territories were applicable to “Eritrean sub-zobas in which Ethiopian armed forces were present only for limited periods, particularly in areas where the troops were passing through on their way to other locations”.172 With reference to paragraphs 351 to 356 of the US Army Field Manual the Commission concluded that:

 “[O]n the one hand, clearly an area where combat is ongoing and the attacking forces have not yet established control cannot normally be considered occupied within the meaning of the Geneva Conventions of 1949. On the other hand, where combat is not occurring in an area controlled even for just a few days by armed forces of a hostile Power, the Commission believes that the legal rules applicable to occupied territory should apply [emphasis added].”173

9Later, in dealing with claims related to the Western Front, the Commission found that the Ethiopian military presence was generally more transitory than it was on the Central Front and clarified that:

“[...] not all of the obligations of Section III of Part III of Geneva Convention IV (the section that deals with occupied territories) can reasonably be applied to an armed force anticipating combat and present in an area for only a few days [emphasis added]”.174

10The Commission thus seems to advance a compromise between the conservative approach maintained by the ICJ in the Armed Activities Case and the ICTY’s view held in the Naletilićcase just mentioned, which largely follows the functional beginning approach. First, for a state of occupation to exist, a certain stabilisation of the situation is necessary and the invading armed forces must have established control; thus generally excluding actual combat zones. Nevertheless, it should be noted that the Commission, in using the adverb “normally”, seems to have been prepared to contemplate special situations where, for instance, the intensity or regularity of contact with enemy civilians calls for protection.175 Second, in recognising that “not all” obligations of the Fourth Geneva Convention relating to occupied territories could reasonably be applied to a particularly transitory military presence on foreign territory, the Commission accepted that many, or at least some provisions are already applicable.

11Thürer and MacLaren deem, on the one hand, that raiding parties, amongst others, would lack “a sustained, physical presence” and could therefore not be considered to be exercising the control necessary for occupation to exist.176 On the other hand, they seem to take a middle course similar to that of the Eritrea-Ethiopia Claims Commission when they advocate a functional interpretation, “designed to maximize the protection afforded by IHL to all persons during hostilities, even in the invasion phase of the conflict”.177Accordingly, belligerent occupation would exist as soon as “a party to a conflict is exercising some level of authority over enemy territory”.178 Given that the predominant doctrine and prevailing practice do not accept that a state of belligerent occupation can be established while active hostilities persist, this last proposition as to the beginning of belligerent occupation may strike a balance between the traditional definition of belligerent occupation and the extensive humanitarian view. Yet, what seems to be a fine compromise at first, turns out to be flawed as well. First, the solution maintained by the Eritrea-Ethiopia Claims Commission creates a legal uncertainty. How many days amounts to the “just a few days” necessary to give effect to the law of occupation? It is highly questionable that one can specify the period of time after the cessation of combat necessary for belligerent occupation to be established. Second, this solution creates, like the traditional definition of belligerent occupation, a gap in protection; an intermediate phase during which the civilian population could not benefit of the protection that that the law of occupation offers. Furthermore, if only a few days suffice to establish a state of occupation, it seems even more difficult to understand why the protection of the civilian population should not benefit from at least certain provisions of the law of belligerent occupation in the intervening period.179