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The Functional Beginning of Belligerent Occupation

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Michael Siegrist

Part A:‎ The Notion and Beginning of Belligerent Occupation

V. Conclusion of Part A

Texte intégral

  • 179  See Graber, The Development…, at p. 68.

1While specific issues regarding the definition of occupation have been subject to controversy almost since the Lieber Code, it has nonetheless become apparent that occupation is only of a temporary nature, that the powers of the occupant are limited and that invasion alone should not decide over the future status of a territory. Common to the texts from the Lieber Code to the 1907 Hague Regulations is a focus on territorial status and the idea that occupation must be “effective”. The rights and duties emanating from occupation were strongly tied to authority exercised over a definable territory. The main point of contention over that period remained whether or not the physical presence of troops on foreign territory was necessary in order to establish effective occupation. Writers at the time also focused on the distinction between invasion and occupation.179 Cessation of resistance, more or less complete, was considered an indication that the legitimate power no longer exercises authority and was thus a requirement for the existence of occupation. Otherwise mere invasion would exist.

2Graber concluded in her seminal work that, at the beginning of the First World War:

  • 180  Ibid., at p. 69.

“while there are many factual situations in which all writers would agree that effective occupation exists, there are many others in which the fact of occupation would be in doubt. This uncertainty has serious consequences because it makes it impossible to state with precision at what point territory is subject to the laws of belligerent occupation and its people must obey these laws or be liable to severe penalties [emphasis added]”.180

3The atrocities of World War II made apparent the insufficiencies of the 1907 Hague Regulations and, at the same time, were a trigger for the adoption of the 1949 Geneva Conventions. The latter have revolutionised contemporary international humanitarian law, particularly with reference to the treatment of civilians, and have clearly elaborated the law of occupation. Yet, the fact that many provisions of the Fourth Geneva Convention apply explicitly to occupied territories and the lack of an explicit definition of belligerent occupation led to uncertainties as to when these provisions begin to apply. In order to guarantee a protection without any gaps the functional beginning of belligerent occupation theory was advocated. According to this interpretation, the provisions of the Fourth Geneva Convention relative to occupied territories apply from the moment that a protected person finds him or herself in the hands of the enemy. This holds true for all cases covered by common Article 2 of the 1949 Geneva Conventions, that is to say declared war, international armed conflict and occupations that meet with no armed resistance. A distinction between invasion and a state of belligerent occupation has become superfluous because of the new rules defining the scope of applicability of the Fourth Geneva Convention.

4Depending on the relationship between the Fourth Geneva Convention and the 1907 Hague Regulations, applying the functional beginning of belligerent occupation theory might lead to a distinction between a state of belligerent occupation as defined in Article 42 of the 1907 Hague Regulations and what one could call the “Fourth Geneva Convention-occupation”. The latter, having a lower threshold of application than the former, potentially covers more situations or becomes applicable at an earlier stage than the 1907 Hague Regulations. The Fourth Geneva Convention thus breaks with the traditional definition of occupation. Whether or not the functional approach of occupation has in fact changed the definition of occupation under the 1907 Hague Regulations remains subject to controversy.

5Where does all this leave us? For the time being it seems unlikely that situations where provisions (of the Fourth Geneva Convention) relating to occupation apply in accordance with the functional approach can be called occupation proper. Accordingly, the term “occupation” in the narrow sense could only be used in order to designate situations that fulfil the criteria of Article 42 of the 1907 Hague Regulations. Before that moment, provisions apply in accordance with the functional approach of occupation, without there being a state of occupation. On the other hand, once a state of occupation in the narrow sense has been established the law of belligerent occupation must be applied as a whole.

  • 181  See Roberts, What..., at p. 304.

6As Roberts has shown in his seminal paper on military occupation, there exist multiple forms of occupation and the law on occupation may be formally applied to them.181 The functional beginning of belligerent occupation theory, following the rules of applicability as advanced in the Fourth Geneva Convention, remains independent of the classical definition of belligerent occupation set out in the 1907 Hague Regulations and would as a consequence overcome some uncertainties, controversies and negative connotations that might be attached to the term “occupation”. As a whole, the functional beginning of belligerent occupation theory seems to result in a more flexible regime which maximises the protection of protected persons.

Notes

179  See Graber, The Development…, at p. 68.

180  Ibid., at p. 69.

181  See Roberts, What..., at p. 304.

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