PREVIEW The 1949 Geneva Conventions: A Commentary Pt 3

5. OCCU PI ED T ER R I TOR I E S

OUP UNCORRECTED PROOF – REVISES, Mon Jul 20 2015, NEWGEN

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Chapter 67. The Concept and the Beginning of Occupation

mnA. Introduction 1B. Meaning and Application 8

I. Establishment of effective control by the Occupying Power 12a. Necessary presence of armed forces? 12b. Occupation of the air and the sea? 15c. Occupation despite resistance? 16d. The possibility of control is sufficient 18e. Minimum duration? 20f. Minimum extent of territory? 21g. Indirect occupation through control by an armed group? 22h. Joint control by a coalition 24

II. Loss of effective control by the adverse party 25 III. Lack of consent 28 IV. Irrelevance of other criteria 36 V. A distinction between invasion and occupation? 41

a. The systematic argument 43b. Is it sufficient to exercise control over a person or over the piece of land

on which that person is found? 45c. A flexible understanding of the obligations of an Occupying Power? 46d. A functional understanding of the concept of occupation itself? 47

VI. The special case of occupation without armed resistance 52 VII. Occupation in national liberation wars 55

C. Relevance in Non-International Armed Conflicts 57D. Legal Consequences of a Violation 58

I. The consequences of occupation in international criminal law 59 II. Occupation and jurisdiction under international human rights law 60 III. Particular efforts to ensure respect by Israel for the rules on military

occupation in Geneva Convention IV 61E. Critical Assessment 62

Select Bibliography

Benvenisti, E., ‘Occupation, Belligerent’, in MPEPILBenvenisti, E., The International Law of Occupation (2nd edn, Oxford: OUP, 2012)Dinstein, Y., The International Law of Belligerent Occupation (Cambridge: CUP, 2009)Ferraro, T., ‘Determining the Beginning and End of an Occupation under International

Humanitarian Law’, 94 IRRC 885 (2012) 133von Glahn, G., The Occupation of Enemy Territory: A Commentary on the Law and Practice of

Belligerent Occupation (Minneapolis, Minn: University of Minnesota Press, 1957)Grignon, J., L’applicabilité temporelle du droit international humanitaire (Geneva: Schulthess,

Collection genevoise, 2014)ICRC, Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting

(Geneva: ICRC, 2012)Kolb, R./Vité, S., Le droit de l’occupation militaire: perspectives historiques et enjeux juridiques actuels

(Brussels: Bruylant, 2009)


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Koutroulis, V., Le début et la fin de l’application du droit de l’occupation (Paris: Pedone, 2010)Pictet Commentary GC IV, at 21–2, 59–61Roberts, A., ‘What Is a Military Occupation?’, 55 BYBIL (1984) 261Vité, S., ‘L’applicabilité du droit international de l’occupation militaire aux activités des

organisations internationales’, 86 IRRC 853 (2004) 9Zwanenburg, M., ‘The Law of Occupation Revisited: The Beginning of an Occupation’, 10 YIHL

(2007) 99

A. Introduction

International humanitarian law (IHL) offers more detailed and far-reaching protection to protected civilians who find themselves in an occupied territory than to anyone else. Even states obsessed with their sovereignty admit that international law regulates their conduct when they act on the territory of another sovereign state which they have no title to rule. From a humanitarian point of view, civilians in occupied territories deserve and need par-ticularly detailed protection; they are living on their own territory, and through no choice of their own come into contact with the enemy. This happens merely because the enemy has gained territorial control over the place where they live.

Because such a detailed and protective regime applies to occupied territories, it is crucial to determine what occupation is, and when the rules of Geneva Convention (GC) IV on occupied territories start to apply to a certain place or person during an armed conflict. Logically, occupation must first be defined before one can enquire when it begins, yet these two questions are so interlinked that they may be considered as two sides of the same coin. In recent history it is not surprising that belligerents have often denied, or were reluctant to admit, that a territory over which they gained control was an occupied territory. In part this is done in order to justify non-respect for the detailed rules of this regime. Other reasons are, however, perhaps even more important. In an international legal order prohibiting aggression and the acquisition of territory by force, military occu-pation is inevitably suspect; in public opinion it has a ‘pejorative connotation’,1 even when the military force that leads to an occupation does not violate jus ad bellum. In addition, any occupation necessarily deprives the local population, if it constitutes a people, at least temporarily of its right to self-determination, and it is incompatible with the idea that the will of the population must be the basis of the authority of government.2 Furthermore, when an armed conflict erupts due to a dispute over territory, the party gaining control over that territory will never treat it as an occupied territory. Lastly, we have to recognize that the very concept of military occupation is based upon territorial control and one state hindering another state’s exercise of control over its own territory, but modern warfare is often not about territorial control. In addition, control may be exercised from a distance and the enemy may be more or less a failed state. However, as long as no specific rules are adopted to cover such new situations, there is no reason not to apply the law of occupation, even if the situation does not conform to the traditional pattern of military occupation.

1 ICRC, Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting (Geneva: ICRC, 2012), at 16.

2 Cf Art 21(3) UDHR.

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Deviation from the traditional stereotype of occupation is not a sufficient reason for the law not to apply.

The main legal issues arising in relation to the concept and beginning of military occupation are how much control a state must exercise, and over what extent of terri-tory, before it can be considered an Occupying Power. This also raises the controversy whether the rules of GC IV on military occupation already apply during the invasion of a territory. Furthermore, it must be clarified whether the rules of GC IV on military occupation become inapplicable by virtue of consent to or the legality of the foreign presence.

Whether a territory is or is not considered occupied under IHL has important practical implications. The rules of IHL on military occupation, set out in the Geneva Conventions and discussed in this and the following chapters (and those foreseen in the Hague Regulations), protect a great variety of collective rights of the occupied population. The Hague Regulations include in particular the right not to be subject to changes affecting the laws in force in the country,3 or rules on the use of private or public property for public or state interests.4 Geneva Convention IV prohibits voluntary population movements (set-tlements) encouraged by the state.5 Those rules cannot be found in IHL applicable outside occupied territories or in international human rights law (IHRL). Such conduct would be perfectly legitimate if adopted by a state in its own territory. Similarly, under GC IV, individual deportations are absolutely prohibited where these take place from occupied territories,6 and a state has a clear treaty-based obligation to accept outside humanitarian assistance for the benefit of civilians in need in an occupied territory.7 Such prohibition and obligations apply only where the territory is considered occupied. It is crucial, there-fore, to know when a territory is occupied.

Historically, before the First World War, debates about the definition of occupation took place in a different policy context. Typical Occupying Powers at that time, such as Germany and Russia, favoured a low threshold of territorial control for the law of occupa-tion to apply, because at the time the law of military occupation was mainly seen as giv-ing the occupant powers under international law. Conversely, those states which feared being occupied, such as Belgium, The Netherlands, Switzerland, and France, insisted on a high threshold of territorial control, making the applicability of the law of occupation more difficult and distinguishing occupation from invasion: ‘No one doubted that an invading army would seek to attain […] effective control over the occupied populations.’8 The Hague Regulations attempted to reconcile these two interests with their definition of occupation,9 which failed to clarify the issue. Today, in particular after the experience of the Second World War and the creation of detailed protection for civilians in GC IV, the interests at stake are inverted. The humanitarians and prospective occupied countries aim to apply the international rules on occupation as soon as possible, while prospective or actual Occupying Powers seek to avoid their application. Occupation has thus become a burden rather than a source of rights for the Occupying Powers. Humanitarians fear

3 Cf Art 43 Hague Regulations. 4 Cf Arts 46–56 Hague Regulations.5 Cf Art 49 para 6 GC IV. 6 Cf Art 49 para 1 GC IV. 7 Cf Art 59 GC IV.8 E. Benvenisti, The International Law of Occupation (2nd edn, Oxford: OUP, 2012), at 45.9 Cf Art 42 Hague Regulations.

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that occupiers who control a territory will refrain from administering it, and fail to com-ply fully with the many obligations under GC IV and other applicable rules of IHL on military occupation.10

In the past 50 years, any discussion about the law of occupation, including its defi-nition and constituent elements, has been overshadowed by one case in particular, the Palestinian territory occupied by Israel. Although atypical, this case has attracted the most international and domestic jurisprudence, scholarly writings, and practice of states and international organizations. For military occupation under GC IV, this case is anom-alous because of its history, duration, and the desire of the Occupying Power to annex the occupied territory de jure or de facto. In addition, technically IHL of military occu-pation applies due to the 1967 armed conflict between Israel, Egypt, Jordan, and Syria, while the main issue today is the distinct concept of alien occupation, i.e. the right to self-determination of the Palestinian people. In this context, any discussion about the constitutive elements of an occupation and when it starts is influenced by the arguably distinct debate of whether Gaza and parts of the West Bank, from which Israeli forces have withdrawn, are still occupied territories. The case of the Palestinian territory, on which nearly all international attention has focused (with short interludes during the Iraqi occupation of Kuwait and the United States (US) occupation of Iraq), has com-pletely overshadowed, if not led to a neglect of, other cases where the rules of IHL on military occupation arguably applied. These cases include the Indian intervention in East Pakistan, the Soviet presence in Afghanistan and Iraqi control over vast parts of Iranian territory in the 1980s, the Indonesian presence in East Timor, the Indian presence in Kashmir, the Moroccan presence in the Western Sahara, the US invasions of Grenada and Panama in the 1980s, control of the Eastern Congo by several neighbouring African states, the (direct and indirect) Armenian presence in Nagorno Karabach, the intermit-tent Turkish military operations in Northern Iraq, the Ethiopian presence in Somalia, the Russian presence in Abkhazia and South Ossetia, the presence of US and coalition forces in Afghanistan displacing the Taliban as the de facto government in 2001, or, most recently, the occupation of Crimea by Russia. At least some attention has been given to other cases of occupation: the mutual control by Eritrea and Ethiopia of small parts of each other’s territory during the 1998–2000 war was covered by an international arbitra-tion; the International Court of Justice (ICJ) dealt with the Ugandan occupation of the Congolese Ituri province; and the Turkish presence in Northern Cyprus has attracted the attention of the European Court of Human Rights (ECtHR), which implicitly classified it as an occupation, without directly applying the rules of IHL on military occupation. As for the question of whether and when the rules of IHL on military occupation apply to an international territorial administration or the presence of forces of an international organization, the cases of Kosovo, East Timor, and Somalia have led to intense scholarly debates.

The term ‘occupation’ appears in Common Article 2 paragraph 2 of the Geneva Conventions, which makes all of the Geneva Conventions (not only GC IV) applicable in ‘cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance’. Furthermore (and more importantly in practice), the most important and lengthy part of GC IV is Part III on protected persons, which contains an entire section (Section III) applicable to ‘occupied territories’. Equally

10 Benvenisti, above n 8, at 46.

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applicable to occupied territories are Section I, containing, as its title indicates, ‘provisions common to the territories of the parties to the conflict and to occupied territories’, and Section IV, prescribing detailed rules protecting protected civilians interned for imperative security reasons. Lastly, under Article 4(B)(1) GC III, former members of the armed forces of the Occupied Power reinterned by an Occupying Power benefit from the treatment accorded to prisoners of war (POWs). Conversely, Article 4(A)(6) of GC III reserves POW status for participants in a levée en masse to ‘[i] nhabitants of a non-occupied territory’.

B. Meaning and Application

The Geneva Conventions do not define ‘occupation’. Under the general rule on treaty interpretation,11 and according to Article 154 GC IV, which states that GC IV is supple-mentary to Section III of the Hague Regulations on ‘military authority over the territory of the hostile state’, it seems appropriate to refer to the Hague Regulations for a definition, Article 42 of which states:

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The only authentic version of the Hague Regulations is the French version, which indi-cates that the territory must be ‘placé de fait sous l’autorité de l’armée ennemie’. This is clearer than the English translation and means that occupation is exclusively a question of fact.12 Most authors and the ICJ understand this definition rather restrictively, requiring a high degree of control and administration—and not mere presence—by the hostile army.13 However, as will be discussed later (MN 48) in relation to the question whether the rules of IHL on military occupation already apply during an invasion, many argue that the concept of occupation in GC IV is broader than that found in the Hague Regulations.

The criteria which must be fulfilled for a territory to be considered occupied under the definition found in the Hague Regulations are generally summarized as requiring:

— effective control by one state engaged in an international armed conflict (IAC) against another state, over parts of the territory of the latter;

— loss of effective control by the latter over that part of its territory; and— lack of consent by the latter.14

The first two criteria are explicitly mentioned by the 1880 Oxford Manual,15 and they still appear in the 2004 UK Manual of the Law of Armed Conflict and the ICJ judgment in DRC

11 Art 31(3)(c) VCLT.12 ICTY, The Prosecutor v Mladen Naletilić and Vinko Martinović, Trial Chamber Judgment, IT-98-34-T,

31 March 2003, para 211; V. Koutroulis, Le début et la fin de l’application du droit de l’occupation (Paris: Pedone, 2010), at 20–74 and 97–149; T. Ferraro, ‘Determining the Beginning and End of an Occupation under International Humanitarian Law’, 94 IRRC 885 (2012) 133, at 134–6.

13 See MN 18.14 ICRC Expert Meeting, above n 1, at 17–23; Ferraro, above n 12, at 139–43; P. Spoerri, ‘The Law of

Occupation’, in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford: OUP, 2014) 182, at 188–92.

15 Art 41 of the Oxford Manual of the Laws of War on Land, adopted by the Institute of International Law, 1880, reproduced in D. Schindler and J. Toman, The Laws of Armed Conflicts (4th edn, Nijhoff: Leiden, 2004) 29, at 35.

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v Uganda.16 The third criterion is inherent in the condition that the occupying army must be ‘hostile’.17

The International Criminal Tribunal for the former Yugoslavia (ICTY) set out more detailed ‘guidelines’ in the Naletilić case, which do not contradict but rather detail the above-mentioned criteria:

— the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly;

— the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation;

— the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt;

— a temporary administration has been established over the territory;— the occupying power has issued and enforced directions to the civilian population.18

In the text that follows, the traditional criteria will be discussed first, followed by those criteria which are not relevant. Then the controversy of whether and to what extent the rules of IHL on military occupation already apply during an invasion will be addressed. Lastly, special cases will be dealt with, such as occupation without armed resistance and national liberation wars.

I. Establishment of effective control by the Occupying Power

a. Necessary presence of armed forces?Most experts believe that an occupation can only begin with the presence of foreign armed forces on the ground.19 In contrast, some others consider that effective control may be exercised remotely, either through control of entry into the territory, the territorial air-space or sea, or through control over living conditions in a territory.20 In reality, those tak-ing the latter view focus on the issue of the end of occupation and want to argue that the Gaza Strip is still occupied by Israel, although Israeli forces withdrew from the Gaza Strip in 2005.21 Indeed, a majority of international institutions adopt this position regarding

16 UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: OUP, 2004), para 11.3; ICJ, Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment, 19 December 2005, para 173.

17 J. Grignon, L’applicabilité temporelle du droit international humanitaire (Geneva: Schulthess, Collection genevoise, 2014), at 119–22.

18 ICTY, Naletilić, above n 12, para 217 (footnotes omitted).19 ICRC Expert Meeting, above n 1, at 17–19; Y. Dinstein, The International Law of Belligerent Occupation

(Cambridge: CUP, 2009), at 44; Ferraro, above n 12, at 143–7; H.-P. Gasser, ‘Protection of the Civilian Population’, in D. Fleck (ed), Handbook on International Humanitarian Law (2nd edn, Oxford: OUP, 2008) 237, at 274; M. Zwanenburg, ‘The Law of Occupation Revisited: The Beginning of an Occupation’, 10 YIHL (2007) 99, at 126; M. Bothe, ‘Beginning and End of Occupation’, in Actes du Colloque de Bruges, Les défis contemporains au droit de l’occupation, 20–21 octobre 2005, Collège d’Europe, Comité international de la Croix-Rouge, Collegium, No 34, 2006, at 27; Spoerri, above n 14, at 189.

20 See, at least for a territory of small dimensions and with the necessary technology, P. Spoerri, Die Fortgeltung völkerrechtlichen Besatzungsrechts während der Interimsphase palästinensischer Selbstverwaltung in der West Bank und Gaza (Frankfurt am Main: Europäische Hochschulschriften, 2001), at 237.

21 S. Solomon, ‘Occupied or Not: The Question of Gaza’s Legal Status after the Israeli Disengagement’, 19 Cardozo Journal of International and Comparative Law (2011) 59, at 72–3; M. Mari, ‘The Israeli Disengagement from the Gaza Strip: an End of the Occupation?’, 8 YIHL (2005) 356, at 363 and 365; E. Benvenisti, ‘The Law

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the Gaza Strip.22 Whether a territory which was once occupied by ground forces may continue to be occupied by remote control is a question dealt with in Chapter 74, MN 39-40, of this volume.

From a strictly logical point of view, one might argue that the same criteria should be used to determine the beginning, the existence, and the end of an occupation.23 However, many experts consider that on the question of whether foreign armed forces must be present on the ground, there is no congruence between the criteria for the beginning of occupation and those for its end.24 Indeed, once ground forces establish sufficient control over territory (and over persons, so that they are considered to be in the hands of the Occupying Power), occupation may be maintained remotely. No one argues, however, that a besieged town, e.g. Leningrad in the Second World War, is an occupied territory before the besieged forces surrender, simply because the besieger controls the airspace and all entry to and exits from the territory, and therefore life in the besieged town. While resistance within an occupied territory does not necessarily end occupation, it is difficult to imagine that occupation being established over a place while the ground forces of the Occupied Power still resist and control that place. In addition, to maintain that occupation can be established remotely without the armed forces ever gaining control of the territory on the ground, would also deprive the civilian population of this territory of combatant and POW status if they engaged in levée en masse, as the latter is reserved to ‘[i] nhabitants of a non-occupied territory’.25 A concept of occupation established through remote control is also incompatible with the actual obliga-tions of an Occupying Power prescribed by the rules of IHL. Without ground control, an Occupying Power cannot respect the many rights it is required to protect and to fulfil, e.g. concerning public order and civil life, health or education, foreseen in the pertinent rules of IHL.26 Therefore, it is only logical that some proponents of the concept of remote or virtual occupation derive from IHL a ‘duty to occupy’27 through ground forces.

However, it is not necessary for the occupying forces to be present on each square metre of a territory. According to the topographical features of the territory, the density of the population, and the degree of resistance (even passive or non-military), it is sufficient if occupying troops are positioned strategically on the ground and, if necessary, are then able to be dispatched fairly quickly to demonstrate and enforce their authority.28

on Asymmetric Warfare’, in M.H. Arsanjani et al (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Leiden, Boston: Martinus Nijhoff, 2011) 929, at 943; S. Darcy and J. Reynolds, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’, 15 Journal of Conflict & Security Law (2010) 211, at 220 and 226–7; S. Dikker Hupkes, What Constitutes Occupation? (Leiden: E.M. Meijers Instituut, 2008), at 22, 35, 51, 84–9; very nuanced: Benvenisti, above n 8, at 54. However, it must be mentioned that the Institut de droit international already envisaged in 1913, when drafting the Oxford Manual of the Laws of Naval Warfare, that a coastal area or island might be occupied by the mere presence of ships, which exercise actual authority over those land areas through their firepower (see Annuaire de l’IDI, Session de Christiania 1912–Session d’Oxford 1913 (Brussels: Lesigne, 1929), at 920). See, for further historical precedents and authors who could be considered to support a concept of remote occupa-tion, Koutroulis, above n 12, at 40, fn 126.

22 See UN Doc A/HRC/12/48, 25 September 2009, paras 273–9; UN Doc A/HRC/15/21, 22 September 2010, paras 63–6. For an overview of these positions, see Grignon, above n 17, at 293–5.

23 Ferraro, above n 12, at 156; with some hesitation, ICRC Expert Meeting, above n 1, at 11, mentioning that the sui generis character of some situations could alter the criteria.

24 ICRC Expert Meeting, above n 1, at 17 and 19; Ferraro, above n 12, at 157–8. Contra Y. Shany, ‘Faraway so Close: The Legal Status of Gaza after Israel’s Disengagement’, 8 YIHL (2005) 369, at 378.

25 Art 4(A)(6) GC III; Art 2 Hague Regulations. 26 Ferraro, above n 12, at 147.27 Benvenisti, above n 8, at 54.28 ICRC Expert Meeting, above n 1, at 17; E. Benvenisti, ‘Occupation, Belligerent’, in MPEPIL (2009),

para 8; US, Department of the Army Field Manual FM 27-10, The Law of Land Warfare (1956), para 356.

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b. Occupation of the air and the sea?Some scholars consider that not only land, but also the territorial sea and the airspace above the territory of another state may be occupied.29 In the context of no-fly zones over Iraq, these scholars even consider that the air may be occupied when the underlying land is not. Although this may be desirable from a humanitarian perspective, as it may lead to obligations for states exercising such control, the result is absurd. Occupation is a concept of the law of land warfare.30 Once land is occupied, the Occupying Power may equally have rights and obligations concerning the airspace over such territory and the territorial sea adjacent to such territory.31 However, the territorial sea or the airspace cannot possibly be occupied alone. They follow, as on other issues, the territory which justifies the rights the territorial state exercises over them.

c. Occupation despite resistance?As long as resistance continues in a given place, the occupation of that place cannot begin. However, once a place is occupied and the armed forces of the Occupied Power are no longer able to resist, periodic but temporary resistance in some areas of the occupied territory does not stop a territory from being considered occupied.32 Article 4(A)(2) GC III indirectly confirms this by conferring (under certain conditions) POW status on ‘[m] embers of […] organized resistance movements, belonging to a Party to the conflict, and operating in or outside their own territory, even if this territory is occupied’, should they fall into the power of the Occupying Power. If any organized resistance barred occu-pation, such resistance fighters would by definition never find themselves in an occupied territory. Most experts add that even temporarily successful resistance does not bar occu-pation.33 They usually refer to a decision of a US Military Tribunal after the Second World War, which held:

It is clear that the German Armed Forces were able to maintain control of Greece and Yugoslavia until they evacuated them in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant.34

Such a theory may be practical for a criminal tribunal operating with hindsight. Disadvantages exist when the rules of IHL must be interpreted for those who fight during an armed conflict. For example, if resistance fighters succeed in liberating part of an occu-pied territory, neither they nor the Occupying Power will know whether the liberation is temporary or not.

In light of the foregoing, it is submitted that in conformity with the second sentence of Article 42 of the Hague Regulations (‘The occupation extends only to the territory where

29 Koutroulis, above n 12, at 35–41.30 Thus equally the position of the ‘United States, Department of State Memorandum of Law on Israel’s

Right to Develop New Oil Fields in Sinai and the Gulf of Suez’, 16 ILM (1977) 749.31 Benvenisti, above n 8, at 55; Dinstein, above n 19, at 47–8.32 ICRC Expert Meeting, above n 1, at 17; ICTY, Naletilić, above n 12, para 217; Benvenisti, above n 8, at

51; Dinstein, above n 19, at 45; K. Dörmann and L. Colassis, ‘International Humanitarian Law in the Iraq Conflict’, 47 GYIL (2004) 293, at 308.

33 Dinstein, above n 19, at 45.34 The Hostages Trial, Trial of Wilhelm List and others, United States Military Tribunal, Nuremberg, 1947–8,

UNWCC Law Reports, vol VIII, 34, at 56.

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such authority has been established and can be exercised’), which was disregarded by the US tribunal (cited above),35 any act of resistance which leads to a loss of territorial control over a part of a territory must end—possibly temporarily—the occupation in that part of the territory.36 In any case, an Occupying Power would be materially unable to fulfil its obligations in a place controlled by resistance fighters.

d. The possibility of control is sufficientA majority of experts consider that a possibility of exercising control over the territory or part of it is sufficient.37 However, this possibility must be based on a ground presence in the territory. This idea may be expressed by requiring that the Occupying Power must con-trol a territory but not necessarily its population.38 This latter idea flows from the former, but, as already mentioned, control over territory vanishes where the population is able suc-cessfully to resist as part of an organized resistance. Conversely, the mere military capabil-ity of a belligerent to control a given territory at its will is not sufficient if that belligerent chooses not to invade it with ground forces. In addition, the ICJ seems to require that the authority is actually exercised.39 In this writer’s view, this does not mean that occupying forces need be present everywhere. However, it would mean that a foreign state is not an Occupying Power if it is present in enemy territory and chooses not to exercise authority. With all due respect for the ICJ, if it is established both that the territorial sovereign is hindered from exercising authority and that there is no consent, it is contrary to legal logic to deny that the occupying state has the manifold obligations under the IHL rules on mili-tary occupation to protect and fulfil (i.e. to exercise authority), simply because it chooses not to exercise authority.40 Correctly, the UK Manual requires only that ‘the occupying power is in a position to substitute its authority for that of the former government’.41

The concept of occupation may be interpreted by factoring in the obligations of an Occupying Power under the IHL rules of military occupation. A territory is then con-sidered occupied only if the Occupying Power is able to comply with its obligations, in particular with Article 43 of the Hague Regulations, requiring it to maintain or restore public order and civil life.42 As will be discussed below (MN 46) in relation to the allegedly

35 Critical also Benvenisti, above n 8, at 47.36 Similarly ICRC Commentary APs, para 1700, which refers to Case No 45 Trial of Carl Bauer, Ernst

Schrameck and Herbert Falten, Permanent Military Tribunal, Dijon, 1945, UNWCC Law Reports, vol VIII, 15, at 18, in which it was held: ‘Any part of territory in which the occupant has been deprived of actual means for carrying out normal administration by the presence of opposing military forces would not have the status of “occupied” territory within the terms of Arts 2 and 42 of the Hague Regulations. The fact that other parts of the occupied country, as a whole, are under effective enemy occupation would not affect this situation.’ As here also Ferraro, above n 12, at 151–2. Note that the House of Lords considered in Al-Skeini that the UK had lost jurisdiction over parts of Iraq it occupied because of the amount of resistance: Al-Skeini and others v Secretary of State for Defence [2007] UKHL 26, [83].

37 ICRC Expert Meeting, above n 1, at 19; Dinstein, above n 19, at 44–5; Benvenisti, above n 8, at 49–50; Benvenisti, in MPEPIL, above n 28, para 5; M. Bothe, ‘ “Effective Control”: A Situation Triggering the Application of the Law of Belligerent Occupation, Background Document’, in ICRC Expert Meeting, above n 1, at 39; M. Bothe, ‘Effective Control During Invasion: A Practical View on the Application Threshold of the Law of Occupation’ 94 IRRC 885 (2012) 37, at 39–40; G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis, Minn: University of Minnesota Press, 1957), at 29; Shany, above n 24, at 375–8; Spoerri, above n 14, at 190; ICTY, Naletilić, above n 12, para 217.

38 Benvenisti, above n 8, at 48. 39 ICJ, DRC v Uganda, above n 16, para 173.40 Bothe in ICRC Expert Meeting, above n 1, at 39. Critical also Ferraro, above n 12, at 150–1.41 UK Manual, above n 16, para 11.3. 42 ICRC Expert Meeting, above n 1, at 18.

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distinct invasion phase, the obligations of an Occupying Power, including under Article 43 of the Hague Regulations, are nevertheless mainly obligations of means, and are there-fore flexibly adapted to the amount of authority and factual possibilities of the occupying forces.

e. Minimum duration?The Occupying Power need not control a part of a territory for a minimum duration. The Eritrea–Ethiopia Claims Commission (EECC) was satisfied with ‘just a few days’.43 A Swiss Military Manual envisages the control of an Occupying Power changing several times and remaining for a very short period.44 The occupation may be instant or take time to consolidate to reach the necessary degree of control.45 Furthermore, a standard requir-ing a certain duration would not be practicable for parties, fighters, victims, and humani-tarian organizations, because they would be required to foresee how control over territory would develop before they could know whether they must comply with the pertinent rules of IHL, are protected by them, should have complied with them from the beginning, or may invoke them at all. Conversely, a concept of occupation without a minimum duration is practicable only if applied functionally, i.e. not all the rules of IHL on military occupa-tion apply at once.46

f. Minimum extent of territory?As for the minimum extent of territory a party must control, it is uncontroversial that a state may be occupied in part. Experts agree that a single village or a small island may be occupied.47 Extreme adherents to the position that GC IV applies during the invasion phase, discussed below (MN 45), would argue that to torture, beat, arrest, detain, or deport a person, invading forces must necessarily control the spot on which that person is found.48 That spot would then constitute an occupied territory; it is under their control and the territorial state is no longer able to exercise its authority over that spot. Neither GC IV nor the Hague Regulations clarify the minimum amount of territory that needs to be controlled for it to become an occupied territory. One might therefore consider the portion of land on which a single house is built as occupied if the enemy has control over that house but not over the neighbouring house, separated from the former through the ‘frontline’. No one would deny that if such a situation arises after a ceasefire, the last house in the occupied territory before the ceasefire line and its inhabitants would benefit from the rules of IHL on military occupation. Admittedly, while a state may comply with all obligations of an Occupying Power in a village, a concept of occupation fragmenting single houses and the portion of land on which they are located will inevitably lead to a functional concept of occupation, under which the portion of land on which the house is built must be considered occupied for the purposes of the applicability of certain rules of IHL on occupation, but not for others (see MN 47–50). Conversely, even if one rejects

43 EECC, Central Front—Eritrea’s Claims 2, 4, 6, 7, 8 & 22, Partial Award, 28 April 2004, para 57.44 Switzerland, Gesetze und Gebräuche des Krieges (Auszug und Kommentar), Reglement 51.7/IId (16 January

1987), Art 152.45 Grignon, above n 17, at 114–15.46 ICRC Expert Meeting, above n 1, at 24. For a discussion of such a functional concept of occupation, see

MN 47–51.47 ICRC Expert Meeting, above n 1, at 24.48 M. Sassòli, ‘A Plea in Defence of Pictet and the Inhabitants of Territories under Invasion: The Case for the

Applicability of Convention IV during the Invasion Phase’, 94 IRRC 885 (2012) 42, at 45.

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the concept of remote occupation, it is possible that armed forces may control a strip of land adjacent to their country’s frontier while remaining physically on their side of the border. Thus, in the case of the Palestinian territory, even if Gaza were no longer consid-ered occupied since 2012, the buffer zone officially declared by Israel around the Gaza Strip, consisting of a military no-go area, in which Israel hinders the entry of Palestinians by firing on them from Israeli territory, may still be considered as occupied, at least for the purpose of the applicability of those rules on occupation with which Israel is able to comply without entering the Gaza Strip.49

g. Indirect occupation through control by an armed group?Normally, to qualify as an occupied territory, armed forces of the Occupying Power are required to exercise the necessary control over a territory. As this is a question of fact, other de jure or de facto agents (e.g. a private military company50) may equally contribute to such control or exercise it alone. What counts is that those who exercise control are acting on behalf of - or are controlled by - a foreign power. When a foreign state exercises control over an armed group, which in turn controls a territory during an armed conflict against the territorial state, the state controlling the group is constructively an Occupying Power.

To reach such a conclusion, one has to consider the controversial question of the neces-sary degree of control by the foreign state over the armed group. For purposes of attribution of state responsibility for illegal conduct to a state, the ICJ requires effective control over the conduct, or complete dependence of the armed group on the relevant state, while it has left open whether mere overall control by a foreign state over the armed group fighting a prima facie non-international armed conflict is sufficient to classify the conflict as international.51 The ICTY considers that overall control over an armed group is sufficient both for purposes of attribution of conduct of the armed group to the controlling state and for the classifica-tion of the conflict as international if that state is a foreign state.52 Logically, an ICTY Trial Chamber therefore considered overall control as sufficient to trigger an occupation by the state controlling an armed group,53 which led to an absurd result: Croatia was legally an Occupying Power in parts of Bosnia where it never directed the armed group, the Croatian Defence Council (HVO) made up of Bosnian Croats, to be present. Thus, the HVO fight-ers had to comply with the restraints applicable to an Occupying Power while operating on territory inhabited by Bosnian Croats, including when carrying out activity on their own initiative while fighting against the Bosnian Government. Another ICTY Chamber applied the law of military occupation only if the foreign state, Croatia, had ‘a further degree of con-trol’ than mere overall control (without clarifying whether effective control was required and, if so, whether the effective control must be exercised by the foreign state over the group, or alternatively by the group or the foreign state over the territory in question).54 In this

49 See, e.g., Al Haq, Shifting Paradigms, Israel’s Enforcement of the Buffer Zone in the Gaza Strip (Ramallah, Al Haq, 2011).

50 Benvenisti, above n 8, at 61.51 See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits, 27 June

1986, para 115; ICJ, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, 26 February 2007, paras 396–407.

52 ICTY, The Prosecutor v Duško Tadić, Appeals Chamber Judgment, IT-94-1-A, 15 July 1999, paras 116–44.

53 ICTY, The Prosecutor v Tihomir Blaškić, Trial Chamber Judgment, IT-95-14, 3 March 2000, para 149. There was no appeal on this aspect of the finding.

54 ICTY, Naletilić, above n 12, para 214. There was no appeal on this aspect of the finding.

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author’s view it is necessary that the foreign state has effective control over the conduct which in turn establishes the armed group’s effective control of the territory in question.55 Others object, saying that overall control by the foreign state makes IHL of IACs applica-ble, and once it is applicable, what has to be determined is only whether the armed group had effective control over the territory.56 To justify their position, they could invoke the jurisprudence of the ECtHR which, in the Loizidou case, considered that Turkey’s overall control over the authorities of the ‘Turkish Republic of Northern Cyprus’ was sufficient to find the former responsible for human rights violations committed by the latter. Indeed, the victims of those violations were considered as falling under Turkey’s jurisdiction.57 In this author’s view, the difference between this and the question discussed here—whether IHL of military occupation applies—is that human rights obligations had to be complied with by the authorities of the ‘Turkish Republic of Northern Cyprus’ (assuming they are bound at all by them) on their own territory, while the IHL of military occupation must only be applied in a foreign territory. It is therefore entirely conceivable that it is sufficient that a state has overall control over unrecognized authorities in another state to make it responsible for their human rights violations, while to make IHL of military occupation applicable, it needs effective control over conduct triggering such applicability.

h. Joint control by a coalitionWhen an occupation is implemented by a coalition of states, which jointly exercise effec-tive control over a territory as discussed above, but without any one of them individu-ally exercising the necessary threshold of authority,58 a mechanical application of the law designed for individual Occupying Powers would deprive the population of the territory of the benefit of the rules of IHL of military occupation—and indeed of all rules of GC IV on protected civilians (see MN 43 and 44). It is therefore suggested that we should aggre-gate the presence and actions of different coalition forces to determine whether the IHL of military occupation applies. If it does, each coalition member could be considered to be functionally bound by the obligations of an Occupying Power in its actions, where any of the following conditions are met:

— if these actions contribute to the necessary control of the coalition, or would typically be carried out by an Occupying Power; or

— if they are actions the coalition is required to take under positive obligations foreseen by IHL of military occupation.59

55 That effective control is here the decisive test is also the opinion of the ICRC Expert Meeting, above n 1, at 23, and Benvenisti, above n 8, at 61, who justifies his position by the obligations to protect. In this author’s view, the effective control test also applies to obligations to respect.

56 Ferraro, above n 12, at 158–60.57 ECtHR, Loizidou v Turkey, Judgment, 18 December 1996, at 2235–6, para 56; and ECtHR, Cyprus v

Turkey, Judgment, 10 May 2001, para 77.58 In the case of Iraq in 2003 and 2004, UNSC Res 1483 (2003) considered in preambular para 14 that

the US and the UK were Occupying Powers, while other coalition members were explicitly mentioned in preambular para 15 as not being Occupying Powers. As the US and the UK had in their respective areas of occupation sufficient control through their forces to fulfil individually the criteria of an Occupying Power, this did not raise major problems, while it would if no coalition partner had on its own sufficient control to be an Occupying Power under IHL.

59 Dörmann and Colassis, above n 32, at 302–4; Ferraro, above n 12, at 161–2; Spoerri, above n 14, at 190; L. Lijnzaad, ‘How Not to Be an Occupying Power: Some Reflections on Security Council Resolution 1483

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II. Loss of effective control by the adverse partyMost authors, manuals, and judicial decisions discuss loss of control or authority by the sovereign or previous administrator over the territory, or substitution by the Occupying Power, as a separate criterion.60 One might doubt whether loss of effective control is not inherent in the first requirement, namely, acquisition of territorial control by the enemy. However, as it is sufficient under this first requirement that the Occupying Power is in a position to exercise control over the territory, followed by positive obligations to exercise such control, those obligations incumbent upon the enemy power would be neither justi-fied nor necessary if the authorities previously in control could fulfil all governmental functions over such a territory.

The mere fact that the administration or local authorities of the territorial sovereign continue to exercise functions of government does not bar the existence of an occupa-tion. On the contrary, the rules of IHL on military occupation largely require that local authorities be permitted to function.61 Such possible power-sharing is generally qualified as vertical, whereby the Occupying Power maintains control over the local administra-tion in the occupied territory and has the final say.62 Horizontal power sharing (where the occupied authority and the occupier cooperate on an equal footing), on the other hand, would be incompatible with occupation, because it would cast doubt on the ability of the Occupying Power to impose its will.63 The present writer objects to the view that occupa-tion is simply a vertical relationship, as one has to recall that IHL requires local authorities have the final say in many fields (e.g. private law or education). In addition, the decisive distinction cannot be that between the ousted sovereign and local authorities. In a unitary state, primary education and sewage may depend upon the central government, while in a decentralized state these responsibilities may fall on municipalities. In both cases the Occupying Power has the same obligation to allow the existing system to function. Decisive for the existence of an occupation is the fact that the Occupying Power could, if it so wished, have the final say in all respects. If it is not IHL or its political decision but its factual inability which hinders it from having the final say, the territory is not occupied. This ability to have the final say in turn is based upon the presence of the occupying forces. The local sovereign or authorities have no control over the presence of the occupying forces, whose conduct is regulated by the Occupying Power and IHL, not by the authori-ties of the occupied state.

What does not exist cannot be replaced. The question therefore arises whether the rules of IHL on military occupation apply when ‘the ousted sovereign’ lacked control even before the Occupying Power established control. First, as discussed below in relation to the Israeli argument against the applicability of GC IV to the West Bank and Gaza (see MN 36), the local authorities that are replaced need not necessarily be those of the

and the Contemporary Law of Occupation’, in L. Lijnzaad, J. van Sambeek, and B. Tahzib-Lie (eds), Making the Voice of Humanity Heard (Leiden: Nijhoff, 2004), at 298.

60 The Hostages Trial, above n 34, at 55; Bothe in ICRC Expert Meeting, above n 1, at 38; R. Kolb and S. Vité, Le droit de l’occupation militaire: perspectives historiques et enjeux juridiques actuels (Brussels: Bruylant, 2009), at 139; Dinstein, above n 19, at 39.

61 See Art 43 Hague Regulations and Ch 69 of this volume. See also Art 6 para 3 GC IV, which implies that an occupation may exist even when the Occupying Power does not exercise the function of government in a territory.

62 Ferraro, above n 12, at 148–9. 63 ICRC Expert Meeting, above n 1, at 20.

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legitimate sovereign. They may be those of a third state, including a previous Occupying Power (except if the sovereign liberates its own territory), or of an armed group. It does not matter whether that group was fighting against the later Occupying Power indepen-dently of the occupied country, or alongside the Occupying Power.64 What counts are the facts: (i) establishment of control, (ii) during an IAC, (iii) by a state over a territory which was not its own before the IAC. Indeed, conquest is no longer a title for acquisition of terri-tory in international law.65 Under this approach, establishing effective control over (parts of) the territory of a failed state constitutes military occupation.66

III. Lack of consentConsent by a state to the presence of foreign troops on its territory and their exercise of control over that territory not only makes the rules of IHL on military occupation inap-plicable,67 but also hinders the applicability of all other rules of IHL of IACs. Even the applicability of IHL of IACs in the case of belligerent occupation without armed resist-ance, discussed below, presupposes lack of consent by the territorial state. The consent must obviously be given before the foreign military presence begins. Subsequent consent does not hinder the applicability of the rules of IHL on military occupation as soon as the condition of control is fulfilled.68 Whether subsequent consent ends an occupation is dealt with in Chapter 74 of this volume. According to experts consulted by the International Committee of the Red Cross (ICRC), the consent must be genuine, valid, and explicit.69 Some add that the consenting state must in addition have effective control over the territory.70 It is argued that only an authority with de facto control over the territory just before the occupation can validly consent.71 De jure authority without de facto control is not sufficient. In this author’s view, mere consent by authorities with de facto control against the will of the de jure authority is equally insufficient.

To evaluate the validity of consent (for the purposes of determining whether IHL of military occupation applies), it is suggested that recourse should be made to the rules of the law of treaties on the validity of a state’s consent to be bound by a treaty, as codified in the Vienna Convention on the Law of Treaties (VCLT). Indeed, if consent is valid for the purposes of the law of treaties, then it would be unimaginable that it would not be valid for the purpose of hindering the application of IHL of military occupation.72 An alternative could be to refer to consent in the law of state responsibility as a circumstance precluding wrongfulness,73 although occupation is not unlawful under IHL. However, the discussion of the International Law Commission (ILC) on when consent precludes

64 See, for the case where an armed group which had effective control is ousted by foreign forces, Bothe, above n 19, at 30, fn 19, who considers that even if the territorial state consents, IHL of military occupation applies (provisionally) when the authority of the territorial government is not re-established.

65 M.N. Shaw, International Law (6th edn, Cambridge: CUP, 2008), at 502.66 This approach is implicitly shared by those who consider that for the purposes of the IHL of military

occupation, the absence of consent must be presumed in the case of a failed state (see below MN 31), and by Australia when it considered the IHL of military occupation to apply to its presence in Somalia (see below MN 54).

67 ICRC Expert Meeting, above n 1, at 21; Benvenisti, in MPEPIL, above n 28, para 1; UK Manual, above n 16, para 11.1.2.

68 See also Art 47 GC IV.69 ICRC Expert Meeting, above n 1, at 21; Spoerri, above n 14, at 190.70 Bothe, above n 19, at 30. 71 Ferraro, above n 12, at 153–4.72 ICRC Expert Meeting, above n 1, at 21. 73 ILC Articles on State Responsibility, Art 20.

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wrongfulness insists that the validity of the consent is not a question of state responsibility but depends on the primary rules concerned,74 or on ‘the rules of international law relat-ing to the expression of the will of the State’.75 The ILC explicitly suggests that ‘the prin-ciples concerning the validity of consent to treaties provide relevant guidance’.76 Special Rapporteur Roberto Ago went even further, writing that ‘the end-result of that consent is clearly the formation of an agreement’.77

To be valid, the consent must not be tainted by a reason of invalidity under the VCLT.78 For the applicability of the law of occupation, it is particularly important to determine whether consent obtained by a foreign state by coercion hinders the application of IHL of military occupation. The law of treaties accepts that international relations continue to be based on power. Therefore, consent to a treaty and the treaty itself are invalid because of coercion only if the consent to be bound has been obtained through a threat or use of force, contrary to the United Nations (UN) Charter.79 As for the state organ which must give consent, it must be able to bind the state under international law.80 Whether it is competent under the constitutional law of the state concerned is irrelevant,81 except in the case of a violation of a constitutional rule of fundamental importance which would be evident to any state.82 In the discussion about the legality of military assistance on request, which parallels in many respects the question discussed here (although it concerns jus ad bellum), many nevertheless suggest a more restrictive approach, i.e. that only the highest authorities of a state can invite foreign armed forces onto its territory.83 This would, how-ever, once more imply that a treaty providing for such presence would be valid under the law of treaties, while the consent to the presence would not be valid for jus ad bellum or jus in bello purposes.

Furthermore, consent must be explicit, not presumed. Therefore, it cannot be given by a failed state lacking effective governmental authorities.84 Some add that consent must be given by the recognized government of a recognized state.85 As the determination of an occupation is a question of fact, the present writer would require consent by the de facto government of the state and would not consider consent by an ineffective de jure govern-ment, perhaps in exile, as sufficient.

Among scholars, there is a tendency to diminish the role of consent by the territorial state as barring the applicability of the IHL rules on military occupation.86 They point out that the same conflict of interest, covered by these rules, exists when the territorial state consents to the military presence on its territory,87 or that what counts today is the non-allegiance of the population.88 However, it is not clear whether these remarks are made de lege lata. The present author would insist that the IHL rules on military

74 Ibid, Commentary, paras 4 and 8 to Art 20. 75 Ibid, para 5. 76 Ibid, para 6.77 Eighth report on State responsibility by R. Ago, UN Doc A/CN.4/318, YILC (1979), vol II, part 1,

para 57.78 ICRC Expert Meeting, above n 1, at 21. 79 Art 52 VCLT. 80 Art 7 VCLT.81 Art 27 VCLT. 82 Art 46 VCLT.83 See discussions of the Institute of International Law on Intervention by Invitation, G. Hafner Rapporteur,

74 Yearbook of the Institute of International Law (2011) 179, at 234, 235, 252, and 258–73. In the resolution finally adopted, the issue is not mentioned (ibid, at 360).

84 ICRC Expert Meeting, above n 1, at 23. 85 Benvenisti, above n 8, at 67.86 ICRC Expert Meeting, above n 1, at 20–1.87 A. Roberts, ‘What Is a Military Occupation?’, 55 BYBIL (1984) 261, at 300; Bothe, in ICRC Expert

Meeting, above n 1, at 37; Zwanenburg, above n 19, at 109 (without drawing the conclusion that IHL of mili-tary occupation applies).

88 Benvenisti, above n 8, at 59–60.

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occupation apply even if the local population (perhaps at a first stage) welcomes foreign troops, or if the latter argue that they are acting merely in the interests of the local popula-tion and of the adverse state.89 Any other interpretation would lead to endless controver-sies over the applicability of IHL, based on subjective judgements and considerations of legitimacy. Conversely, it seems problematic to allow a criterion as difficult to establish as that of the allegiance of the population or a conflict of interest, to turn a foreign military presence to which the government of the territorial state has consented into a belligerent occupation. Does this imply mandatory periodical referendums regarding any foreign military presence? In any case, no precedent is known in which IHL rules on military occupation were applied (or claimed to apply de jure) after the host state had given its valid consent (see however MN 35 below).90

The conclusion of a ceasefire or armistice cannot imply consent precluding the applica-bility of the IHL rules on military occupation, even if such agreement specifically allows one belligerent to control territory of another which it did not control before the outbreak of hostilities.91 Otherwise, the archetype of an occupied territory, the Israeli-occupied Palestinian territory, would not be occupied because the Israeli presence in the West Bank and the Gaza Strip is implicitly permitted by the 1967 ceasefire agreement.92 Similarly, the fact that the 2008 ceasefire between Georgia and Russia brokered by France allowed a provisional Russian military presence on undisputed Georgian territory,93 did not make the law of military occupation inapplicable to such territory. Some authors justify this result by reference to Articles 6/6/6/7 common to the Geneva Conventions (which state that agreements between belligerents cannot deprive protected persons of rights under the Geneva Conventions) and Article 47 GC IV (which states the same for agreements between an Occupying Power and local authorities).94 In this author’s view, this reasoning is not convincing (although the result is correct). Article 47 does not apply to agreements (e.g. a ceasefire, an armistice, or a peace treaty) between the Occupying and Occupied Powers. As for Article 6/6/6/7, it hinders the parties from modifying the rules of IHL on military occupation, but not from ending an occupation, e.g. by concluding a peace treaty which transfers sovereignty of the occupied territory to the former Occupying Power. A more convincing argument for the aforementioned conclusion is based on a system-atic interpretation of the IHL rules on occupation read in conformity with subsequent practice. Under Article 6 GC IV, and even more under Article 3(b) Additional Protocol (AP) I, the rules of IHL on military occupation continue to apply beyond the general

89 Kolb and Vité, above n 60, at 78–9.90 ICRC Expert Meeting, above n 1, at 21.91 Pictet Commentary GC IV, at 22; Roberts, above n 87, at 267; M. Bothe, ‘Occupation after Armistice’,

in R. Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam: Elsevier, 1993), vol III, 761, at 763. Contra Dinstein, above n 19, at 36. Bothe, above n 19, at 27, considers that IHL of military occupation applies only if the armistice refers to it.

92 ‘United States Department of State: Background on Israel’, Bureau of Near Eastern Affairs (22 February 2010), available at <http://www.state.gov/r/pa/ei/bgn/3581.htm>. For an overview of the facts see ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, paras 73–5; HRCouncil, Report of United Nations Fact-Finding Mission on the Gaza Conflict, ‘Human Rights in Palestine and other Occupied Arab Territories’ (25 September 2009) UN Doc A/HRC/12/48, para 177.

93 Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG), Report, 30 September 2009, vol II, at 219; Human Rights Watch, ‘Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia’, Report, 23 January 2009, at 25.

94 Kolb and Vité, above n 60, at 92.

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close of military operations, which is most often based upon a ceasefire or an armistice. If ceasefires or armistices ended an occupation, the aforementioned provisions would largely lack their desired effect.

For similar reasons, surrender, which implicitly allows a belligerent to occupy the terri-tory of the surrendering adversary, cannot count as consent barring the applicability of the rules of IHL on military occupation.95 While the Hague Regulations were not considered to apply to the post-surrender occupation of Germany and Japan following the Second World War, the Geneva Conventions would now apply,96 which results from the intention of the drafters.97

If a state withdraws its consent to a foreign military presence and the foreign troops nevertheless stay on, this not only constitutes an aggression under jus ad bellum,98 but also turns the presence into an occupation,99 provided that the foreign forces control the ter-ritory where they are present and hinder control of the territorial state under the criteria discussed above.100 If the territorial state defends itself against this aggression, Article 2 paragraph 1 governs the occupation, otherwise Article 2 paragraph 2 GC IV applies.101

IV. Irrelevance of other criteriaAt least for a belligerent occupation during, or resulting from, an armed conflict, in which territory which was not previously controlled by it fell under the control of a belligerent, it is equally irrelevant whether the enemy was sovereign over that territory.102 Israel argues that the West Bank and Gaza, which it occupied in 1967, are not occupied territories because at the time of occupation they were not ‘the territory of a High Contracting Party’ as required by Common Article 2 for the applicability of the Geneva Conventions.103 The ICJ rejected this argument (at least for an occupation occurring during an IAC under Common Article 2 paragraph 1), stating that it was sufficient that Jordan and Israel (the ICJ only had to deal with the West Bank) were parties to the Geneva Conventions and engaged in an IAC which led to the occupation of the West Bank.104 The EECC correctly held that the ICJ’s finding (that it is irrelevant whether the occupied territory belongs to another High Contracting Party) applies even where the occupied territory is sub-sequently found to have belonged to (but was not controlled before the conflict by) the belligerent who occupied it.105 This author suggests an exception in the case where a state liberates its own territory, which was occupied by its adversary during a previous armed

95 Pictet Commentary GC IV, at 22; Dinstein, above n 19, at 32–3.96 Kolb and Vité, above n 60, at 95–9; Roberts, above n 87, at 270–1; von Glahn, above n 37, at 281, 283.97 Final Record, vol II-A, at 623–4.98 See Definition of Aggression, UNGA Res 3314 (XXXIX), Art 3(e).99 Dinstein, above n 19, at 37, 42; Bothe, above n 19, at 32; Koutroulis, above n 12, at 87–8, who rightly

mentions that this is one of the few situations in which jus ad bellum influences jus in bello.100 In DRC v Uganda, above n 16, after the ICJ found that Congo had withdrawn its consent to the presence

of Ugandan troops (para 53), it started to analyse whether the Ugandan presence satisfied its requirements for effective control over the territory (paras 172–80).

101 See for the latter case Kolb and Vité, above n 60, at 79–81, who mention Namibia as an example.102 In this respect the present author disagrees with ICRC Commentary APs, para 112, when it states that

occupation of a territory which has not yet been formed as a state is covered by Art 1(4) AP I but not by Art 2 common to the GCs, although this interpretation appears (mistakenly) in the preparatory works of AP I.

103 M. Shamgar, ‘The Observance of International Law in the Administered Territories’, 1 IsrYBHR (1971) 262–77.

104 ICJ, Legal Consequences of the Construction of a Wall, above n 92, paras 90–101.105 EECC, Central Front—Ethiopia’s Claim No 2, Partial Award, 28 April 2004, paras 28 and 29.

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conflict and remained occupied until the most recent armed conflict.106 However, if the sovereignty over the territory is contested, the IHL rules on military occupation apply,107 as they do in all cases in which a state invades territory it considers to be its own, e.g. when Argentina invaded the Falkland/Malvinas islands in 1982,108 if such ownership is contested by the adversary.

As for every other rule or concept of IHL, any jus ad bellum consideration, such as whether the occupation is lawful or unlawful, is irrelevant for the determination of whether a territory is occupied.109 Even territory coming under the control of a belligerent exercising its right to self-defence, or which is authorized by the UN Security Council to use force, is an occupied territory (the issues of a UN authorized occupation and occupa-tion by UN forces will be discussed below at MN 38, 40, and 54). Additionally, Article 47 GC IV clarifies that no annexation by the Occupying Power, and no agreement concluded with the authorities of the occupied territory subsequent to the occupation (to be distin-guished from consent by the Occupied Power, discussed above at MN 28–35), can alter the status of a territory as occupied.

While it is clear that UN Security Council authorization for the use of force does not make the rules of IHL on military occupation inapplicable,110 it is more controversial when the UN Security Council has authorized the very presence of the Occupying Power. Thus, it has been argued that in such cases this presence is not an occupation (but in the case of Iraq in 2003–4 the Council explicitly stated that at least the US and the United Kingdom (UK) were Occupying Powers). Some authors argue that the Security Council may end an occupation altogether, not by changing the facts on the ground but by requalifying a belligerent occupation as an international transitional administration.111 Under Article 103 of the UN Charter, UN Security Council resolutions prevail over any other interna-tional obligation,112 including the obligations that flow from military occupation under IHL. According to the letter of the Article, this is at least the case for treaty obligations.113 Obviously, one might argue that definitions are not an obligation and therefore cannot be overridden by the Security Council. However, the determination that a territory is occupied leads to certain IHL obligations, and the determination that the territory is not occupied would mean that such obligations no longer exist and thus would override them in substance. Many argue that the UN Security Council cannot derogate from jus cogens.114 However, there is no centralized organ that could determine that a resolution derogating from IHL is contrary to a norm of jus cogens. In addition, a norm of jus cogens is defined by Article 53 VCLT as ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted’. If a resolution was approved by at least nine members of the UN Security Council and not opposed by one

106 Implicitly Benvenisti, above n 8, at 43, requiring that the Occupying Power ‘has no title’.107 Ibid, at 59. 108 Roberts, above n 87, at 280. 109 The Hostages Trial, above n 34, at 59.110 Dörmann and Colassis, above n 32, at 302.111 S. Vité, ‘L’applicabilité du droit international de l’occupation militaire aux activités des organisations

internationales’, 86 IRRC 853 (2004) 9, at 28. See also M. Ottolenghi, ‘The Stars and Stripes in Al-Fardos Square: The Implications for the International Law of Belligerent Occupation’, 77 Fordham Law Review (2004) 2177.

112 ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v US), Order, 14 April 1992, para 126.

113 For an opinion that this does not cover obligations under customary international law, see ibid, Dissenting Opinion of Judge Bedjaoui, para 29.

114 See extensively Koutroulis, above n 12, at 100–13.

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permanent member (see Article 27(3) of the UN Charter), it could violate a norm of jus cogens as defined by the VCLT only if it was clearly established that before the resolution was adopted, the norm derogated from constituted jus cogens. Indeed, the states adopting the resolution apparently considered that derogation from the IHL norm is permitted, otherwise they would not have voted in favour of the resolution. This would cast serious doubts on whether the international community of states as a whole indeed considers that no derogation from the IHL norm is permitted. Lastly, the question arises whether the rule setting the definition of occupation belongs to jus cogens. Some answer affirmatively, because the definition of occupation is essential for the operation of the protective rules, some of which belong to jus cogens.115

Nevertheless, in this author’s opinion, any derogation from the rules of IHL by the UN Security Council must be explicit, and its resolutions must be interpreted whenever pos-sible in a manner compatible with IHL. The mandate of the Security Council to maintain international peace and security enforces jus ad bellum. Just as a state implementing jus ad bellum by using force in self-defence must comply with IHL, any measure authorized by the Council must be implemented in a manner that respects IHL.116

A distinct issue is whether the rules of IHL on military occupation apply at all to a UN-led territorial administration. Apart from the general controversies whether the UN or other international organizations are bound by IHL (see Chapter 1 of this volume, MN 16–19), some object to the mere possibility that UN peacekeeping forces could be subject to the obligations of an Occupying Power.117 Significantly, the UN Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, which refers to many rules UN forces must respect under IHL while engaged as combat-ants in armed conflicts, does not mention one rule of IHL on belligerent occupation.118 Opponents to the applicability of IHL in such a case argue that the rights and obliga-tions accruing to Occupying Powers under IHL flow from the conflict inherent in the relationship between traditional Occupying Powers and the population under occupa-tion. Therefore, it follows that the same rights and obligations are not relevant to the altruistic nature of a peacekeeping operation, which is deployed in conformity with the general interest.119 They argue, as a protective force, peacekeepers are accepted—if not welcomed—by the local population, and thus do not require the strictures of IHL. This rather rosy view of the relationship between peacekeepers and the local population is not always borne out by reality. The level of altruism or good intentions may be difficult to measure, and will change according to one’s perspective; it is not a sound basis for deter-mining whether IHL applies to a given conflict. If this was decisive, why should opera-tions carried out by individual states or regional organizations claiming their motives are purely altruistic be subject to IHL? In this writer’s opinion, denying the applicability of IHL of military occupation to UN peacekeeping operations based on the alleged altruistic nature of the operation sometimes disregards reality and always mixes a jus ad

115 Ibid, at 114.116 See T. Meron, ‘Prisoners of War, Civilians and Diplomats in the Gulf Crisis’, 85 AJIL (1991) 104, at 106,

and, for the ECHR, ECtHR, Al-Jedda v United Kingdom, Judgment (Grand Chamber), 7 July 2011, para 102.117 Gasser, above n 19, at 272. 118 UN Doc ST/SGB/1999/13, 6 August 1999.119 D. Shraga, ‘The United Nations as an Actor Bound by International Humanitarian Law’, in L. Condorelli,

A-M. La Rosa, and S. Scherrer (eds), Les Nations Unies et le droit international humanitaire, Actes du Colloque international à l’occasion du cinquantième anniversaire des Nations Unies, Genève, 19, 20 et 21 octobre 1995 (Paris: Pedone, 1996) 317, at 328; Vité, above n 111, at 19.

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bellum argument into whether jus in bello applies.120 Another line of argument holds that IHL of belligerent occupation cannot apply to transitional international civil adminis-trations because, under their Security Council mandate and subsequent practice, such administrations make changes to local legislation and institutions which would not be permitted under the IHL of military occupation.121 This argument however invites the question whether the territory over which the transitional civil administration is estab-lished is an occupied territory for which such changes are not admissible. Arguably, when the UN or a regional organization has effective control or power over a territory without the consent of the sovereign of that territory, it is an occupying force.122 When the sovereign consents and allows a foreign power to administer its territory, the rules of IHL on military occupation do not apply. However, as long as rules of international law for international administration not qualifying as occupation are lacking and subsidiary to the UN Security Council resolution establishing the international administration, the latter should be guided, by analogy, by the rules of belligerent occupation, with which it shares a commonality.123

V. A distinction between invasion and occupation?Many authors, military manuals, the ICJ, and the EECC distinguish between the inva-sion phase and the occupation phase.124 The proponents of this distinction argue that the rules of GC IV pertaining to occupied territories apply only during the latter phase.125 Their argument is based mainly on a certain understanding of Article 42 of the Hague Regulations and the argument that the concept of occupation under GC IV must neces-sarily be the same as under the Hague Regulations (see MN 8). In addition, as discussed above, occupation must involve some control, while mere presence does not imply control. Lastly, in other international instruments, occupation is explicitly dealt with as a conse-quence of an invasion, which suggests that the two phases cannot coexist.126 To avoid

120 Vité, above n 111, at 27, replies that the Security Council does not derogate from IHL but creates a situ-ation to which IHL on its own terms does not apply.

121 Ibid, at 24.122 Benvenisti, above n 8, at 63; M. Hoffman, ‘Peace-Enforcement Actions and Humanitarian

Law: Emerging Rules for “Interventional Armed Conflict”’, 82 IRRC 837 (2000) 193, at 203 and 204; B. Levrat, ‘Le droit international humanitaire au Timor oriental: entre théorie et pratique’, 83 IRRC 841 (2001) 77, at 95–6; J. Cerone, ‘Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo’, 12 EJIL (2001) 469, at 483–5; Spoerri, above n 14, at 191. Roberts, above n 87, at 291 (citing D. Bowett, United Nations Forces: A Legal Study of United Nations Practice (1964)), writes that most or all customary or conventional laws of war would apply.

123 M. Sassòli, ‘Droit international pénal et droit pénal interne: le cas des territoires se trouvant sous admin-istration internationale’, in M. Henzelin and R. Roth (eds), Le droit pénal à l’ épreuve de l’ internationalisation (Paris/Geneva/Brussels: L.G.D.J./Georg/Bruylant, 2002) 119, at 141–9; Vité, above n 111, at 29–33; M. Kelly et al, ‘Legal Aspects of Australia’s Involvement in the International Force for East Timor’, 83 IRRC 841 (2001) 101, at 115; Norwegian Institute of International Affairs and Lessons-Learned Unit of the Department of Peacekeeping Operations, Comprehensive Report on Lessons-Learned From United Nations Operation in Somalia: April 1992–March 1995 (New York: Department of Peacekeeping Operations, 1995), para 57.

124 US Manual FM 27-10, above n 28, para 352; Zwanenburg, above n 19, at 107–8; M. Zwanenburg, ‘Challenging the Pictet Theory’, 94 IRRC 885 (2012) 30; Bothe, IRRC, above n 37, at 37–9; Koutroulis, above n 12, at 47–69; G. Schwarzenberger, ‘The Law of Belligerent Occupation: Basic Issues’, 30 NJIL (1960) 10, at 18–21; ICJ, DRC v Uganda, above n 16, paras 172, 173, and 219; EECC, Central Front—Eritrea’s Claims, above n 43, para 57.

125 Dinstein, above n 19, at 41–2; Gasser, above n 19, at 276–7.126 Bothe, IRRC, above n 37, at 37–8. See also ICRC Commentary APs, para 1699.

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unsatisfactory results, some of the proponents of the distinction nevertheless admit that occupation immediately follows the invasion phase.127

On the contrary, Jean S. Pictet, who is followed by many experts, the ICRC, and the ICTY, holds that the concept of occupation under GC IV is different from that of the Hague Regulations:

There is no intermediate period between what might be termed the invasion phase and the inaugu-ration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets.128

This approach (hereafter referred to as ‘the Pictet theory’) may be justified by several, partly alternative, arguments. First, a systematic interpretation of GC IV, taking its object and purpose into account, leads to the conclusion that enemy control over a person in an invaded territory is sufficient to make this person protected by the rules of GC IV on occupied territories. Secondly, even if occupation is defined purely territorially, civilians falling into the power of the enemy during an invasion perforce find themselves on a piece of land controlled by that enemy. The main objection to the ‘Pictet theory’ is that it requires from invading forces what they cannot deliver. Followers of Pictet reply that the very wording of the provisions of GC IV (and arguably that of the Hague Regulations) is flexible enough not to require what is impossible in the invasion phase. Alternatively, the concept of control could be interpreted functionally, requiring a different threshold for different rules. Lastly, some rules of Section III of Part III of GC IV may be seen as confer-ring on invading forces certain rights, e.g. a legal basis for security measures, internment, or the requisition of labour, a point completely neglected by adherents and critics of the ‘Pictet theory’. Arguably, otherwise, invading forces would have simply no legal basis to arrest and detain civilians who threaten their security.

a. The systematic argumentMost of the rules of GC IV, i.e. Articles 27–141, forming Part III of the Convention, ben-efit only ‘protected civilians’, as defined in Article 4. This provision reads:

Persons protected by the Convention are those who, at a given moment and in any manner what-soever, 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.

To explain why inhabitants of invaded territories are protected civilians by arguing that they are in the hands of an Occupying Power is circular.129 However, Article 4 equally covers persons who find themselves in the hands of a party ‘to the conflict’. When inhab-itants of an invaded territory fall under the control of invading forces, e.g. by arrest and detention, they are without a doubt in the hands of a party to the conflict of which they are not nationals, and are therefore protected persons. As such, they must benefit from

127 EECC, Central Front—Eritrea’s Claims, above n 43, para 57; Bothe, IRRC, above n 37, at 39–41.128 Pictet Commentary GC IV, at 60, followed by ICRC Expert Meeting, above n 1, at 24–6; ICRC, Report

to the 31st International Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, ICRC, Geneva, October 2011, available at <https://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl - challenges-report-11-5-1-2-en.pdf>; Kolb and Vité, above n 60, at 65–86; Naletilić, above n 12, at 219–22; Sassòli, IRRC, above n 48, at 42–50.

129 Zwanenburg, IRRC, above n 124, at 32–3.

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some rules of Part III of GC IV dealing with the ‘status and treatment of protected persons’. Those rules are separated into rules applicable to aliens who find themselves on non-occupied territory of a state (Section II) and those applicable to occupied ter-ritories (Section III). The two categories are mutually exclusive, and must arguably cover all possible situations in which a civilian is in enemy hands. As for Section I, its title, referring to ‘Provisions common to the territories of the parties to the conflict and to occupied territories’, can be read as encompassing not only the invading state’s own territory and any occupied territories, but also any other territory of a party to the conflict.130 This issue is discussed in depth in Chapter 52 of this volume. According to the present author, under a systemic interpretation, the term ‘common’ in the title of Section I must be considered to refer to what appears in the following Sections II and III. Furthermore, the travaux préparatoires show that Part III was intended to cover (only) two categories of persons: aliens on the territory of a party to the conflict, and the population of occupied territories.131

Therefore, defenders of the ‘Pictet theory’ argue, if invaded territory was not con-sidered occupied under the categories of GC IV, ‘protected civilians’ falling into the hands of the enemy on invaded territory would not be protected by any rule of Part III.132 However, their argument continues, there is no possible reason why those per-sons need or deserve less protection than other civilians who are in the power of the enemy, and it is unimaginable that the Convention’s drafters would have left such a gap between foreigners found in a party to the conflict’s own non-occupied territory and persons found in the territory occupied by a party to the conflict.133 To take an example mentioned by Pictet,134 it seems absurd that the deportation of civilians would not be prohibited in the invasion phase by GC IV,135 but would be absolutely prohibited once the invasion turned into an occupation. Inhabitants of a territory under invasion are enemy nationals encountering a belligerent on their own territory, independently of their will, which is precisely the situation for which the rules of IHL on military occupation were made.

130 Many experts therefore suggest that Section I already applies during an invasion phase (ICRC Expert Meeting, above n 1, at 26, and Ch 52, MN 44–48, of this volume).

131 Committee III, ‘Report to the Plenary Assembly’, Final Record, vol II-A, at 821: ‘Part III constitutes the main portion of our Convention. Two situations presenting fundamental differences had to be dealt with: 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.’ The ICRC’s ‘preliminary remarks’ to the text of the GCs are even more explicit: ‘[Convention IV] distinguishes between foreign nationals on the territory of a party to the conflict, and the population of occupied territories. It is divided into five Sections. Section I contains provisions com-mon to the above two categories of persons […]’ (The Geneva Conventions of 12 August 1949 (Geneva: ICRC, 2010), at 32).

132 Benvenisti, in MPEPIL, above n 28, para 6; Koutroulis, above n 12, at 63.133 Admittedly, as those who defend the distinction between invaded and occupied territory mention (see

e.g. Zwanenburg, IRRC, above n 124, at 33–4), other distinctions found in IHL, e.g. between IACs and NIACs, or between protected and other civilians, equally lead to gaps in protection. However, those other distinctions may be explained from the perspective of states keen to protect their sovereignty and reluctant to accept international rules governing how they behave on their territory and/or towards their own nationals. Once they have accepted international rules protecting enemy nationals on their own and on occupied terri-tory, a legal black hole between those two categories cannot be explained, even from the perspective of states keen to protect their sovereignty.

134 Pictet Commentary GC IV, at 60.135 Art 49 para 1 GC IV applies only in occupied territories.

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b. Is it sufficient to exercise control over a person or over the piece of land on which that person is found?

To avoid such a gap in protection, Pictet argues that to trigger the applicability of the provisions of GC IV on occupied territories and apply them to a particular person, con-trol over that person (in a territory which is not the invader’s own) must be sufficient.136 Many object and claim that according to the ordinary meaning of the terms (and Article 42 of the Hague Regulations), occupation must include control over territory.137 Indeed, a person may be arrested or detained but not ‘occupied’. To consider this objection, one might suggest a functional approach to the amount of territory that can be occupied (see MN 21). The main objection against this interpretation is that many rules of GC IV, in particular those setting out positive obligations of an Occupying Power, cannot possibly be respected by invading forces, and unrealistic interpretations of IHL rules must be avoided.138

c. A flexible understanding of the obligations of an Occupying Power?Followers of the ‘Pictet theory’ counter the criticism that it leads to unrealistic demands by replying that the rules of IHL of military occupation are not strict obligations of result.139 To take one example, under Article 50 GC IV, a provision often mentioned by adherents of the distinction between invasion and occupation,140 an Occupying Power has the obli-gation to facilitate, with the cooperation of the national and local authorities, the proper functioning of children’s educational institutions. First and foremost this obligation pro-hibits interfering with the activities of those institutions.141 Forces invading a village are perfectly capable of refraining from requisitioning the only school located in that village. Admittedly, supporting such institutions might require a certain degree of control and authority; yet support will depend upon the circumstances and the capabilities of the invading troops. According to the clear wording of Article 50 (‘facilitate’), supporting these institutions is an obligation of means.

d. A functional understanding of the concept of occupation itself?The concept of occupation itself can also be understood functionally. In this sense, a territory is considered occupied for the purpose of the applicability of certain rules of IHL of military occupation, but not for others (see for a critical analysis and some consequences Chapter 52, MN 63–72, of this volume). In particular, this approach may be defended on the arguably distinct issue of the end of an occupation, where the Occupying Power still retains some aspects of control after withdrawing, such as Israel after it withdrew from the Gaza Strip.142

The concept that only some rules of IHL apply during the invasion phase is not new. Many authors and the EECC, who distinguish occupation and invasion, nevertheless

136 Pictet Commentary GC IV, at 60–1; ICTY, Naletilić, above n 12, para 221. For the distinct issue when a person is under the jurisdiction of a state, human rights bodies have considered that control over the person abroad is sufficient: see HRCttee, General Comment 31, 26 May 2004, para 10; ECtHR, Al-Skeini and oth-ers v United Kingdom, Judgment, 7 July 2011, paras 136–7; HRCttee, Lopez Burgos v Uruguay (Comm No 52/1979), 29 July 1981, UN Doc CCPR/C/13/D/52/1979.

137 Zwanenburg, IRRC, above n 124, at 32 and 34; Bothe, IRRC, above n 37, at 39.138 Zwanenburg, IRRC, above n 124, at 35; Bothe, IRRC, above n 37, at 39 and 41.139 See, for a full discussion, M. Siegrist, The Functional Beginning of Belligerent Occupation, The Graduate

Institute, Geneva, eCahiers, No 7, April 2011, at 35–77, available at <http://iheid.revues.org/75?lang=en>.140 Zwanenburg, IRRC, above n 124, at 35. 141 Pictet Commentary GC IV, at 286.142 See Ch 74, MN 40, and ICRC Expert Meeting, above n 1, at 31–3.

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admit that some rules of GC IV already apply during invasion.143 Pictet himself distin-guishes the Hague Regulations from GC IV, arguing that for the latter, ‘the word “occu-pation” […] has a wider meaning than it has in Article 42 of the Hague Regulations’,144 which implies that his theory does not apply to the Hague Regulations. However, one might argue that an invader must already respect the prohibition in Article 44 of the Hague Regulations, which states that a belligerent is forbidden ‘to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent’.145

Others, including the ICTY,146 want to distinguish between the rules protecting persons147 and those protecting property, with only the former applying during the inva-sion phase. Pictet writes: ‘So 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 [Hague Regulations].’148 One might consider however, that property is protected because of the individuals who own it. In addition, why should, say, Article 57 GC IV, limiting the possibility to requisition hospitals, not yet apply during the invasion phase? This author suggests analysing which rules apply during the invasion phase not according to pre-established broad categories, but for every rule in every case, accord-ing to the degree of control the invader exercises in that given case. This also avoids the dif-ficulty of determining when the invasion phase turns into the occupation phase.149 For the beginning of occupation, such an understanding would parallel the functional concept of end of occupation, which is inherently adopted by all scholars,150 UN Documents,151 and states that still consider Gaza to be occupied by Israel, but do not require Israel to re-enter the Gaza Strip to maintain law and order, or to ensure that detainees in Gaza are treated humanely by local authorities.152 Pictet’s remarks point in the same direction, whereby ‘Articles 52, 55, 56 and even some of the provisions of Articles 59 to 62 […] presuppose presence of the occupation authorities for a fairly long period’.153 Under such a functional understanding of occupation, an invaded territory could at a certain point already be occupied for the purpose of the applicability of Article 49 (prohibiting deportations), but not yet occupied for the application of Article 55 (on food and medical supplies). On such a sliding scale of obligations, which apply according to the degree of control, obligations to abstain would be applicable as soon as the conduct they prohibit is materially possible (respectively, the person benefitting from the prohibition is in the hands of the invading forces), while obligations to provide and to guarantee would apply only at a later stage. This sliding scale would also be more adapted to the fluid realities of modern warfare and the absence of frontlines than the traditional ‘all or nothing’ approach.

143 EECC, Western Front—Aerial Bombardment and Related Claims, Eritrea’s Claims 1, 3, 5, 9–13, 21, 25 and 26, Partial Award, 19 December 2005, para 27; Dinstein, above n 19, at 40–2; Benvenisti, above n 8, at 51–3; Koutroulis, above n 12, at 69–71; Dörmann and Colassis, above n 32, at 301.

144 Pictet Commentary GC IV, at 60. Critical Ferraro, above n 12, at 136–9.145 Siegrist, above n 139, at 66–7.146 ICTY, Naletilić, above n 12, paras 221 and 587. In The Prosecutor v Ivica Rajić, Review of the Indictment

pursuant to Rule 61, 13 September 1996, paras 38–42, the ICTY applies, however, Art 53 of GC IV during the invasion phase.

147 Benvenisti, above n 8, at 52. 148 Pictet Commentary GC IV, at 60.149 Bothe, IRRC, above n 37, at 39–40.150 See, e.g., Solomon, above n 21, 59; Darcy and Reynolds, above n 21, 211; and Mari, above n 21, 356.151 See UN Doc A/HRC/12/48, 25 September 2009, paras 273–9, and UN Doc A/HRC/15/21, 22

September 2010, paras 63–6.152 As it should under Art 43 Hague Regulations and Arts 27 and 76 GC IV, respectively.153 Pictet Commentary GC IV, at 60.

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The main objections to the differentiated applicability of the rules of IHL on military occupation are, first, that nothing in the text of GC IV suggests such an approach and, secondly, that the rules of IHL must be clear and foreseeable for those applying them in the field.154 To counter the first point, applying the text (which does not clarify whether or not it applies during an invasion) without such a differentiation leads to absurd results, which are contrary to the object and purpose of GC IV, both when no rule of GC IV is applicable and when all rules of GC IV are considered to apply during the invasion phase. According to the weight one gives to the second point and the important consideration of practicability, it may be preferable not to apply a sliding scale according to the facts of each and every situation, but to determine ex ante which rules apply and which do not apply during an invasion. This approach was suggested by Pictet, referred to above. Others have suggested making a distinction between:

— those rules where a significant gap in protection would exist if they were not applicable during the invasion phase (Articles 49, 51 paragraphs 2–4, 52, 53, 57, and 63 GC IV);

— obligations to provide or respect which are triggered by activities of the Occupying Power and which therefore, in any event, apply during the invasion phase only if the Occupying Power is able and willing to undertake such activities (Articles 64–75, 54, 64 paragraph 1, 66, and 78 GC IV), e.g. to try or intern protected civilians; and

— the obligations to provide or respect due to the mere fact of occupation (Article 43 of the Hague Regulations and Articles 48, 50, 51 paragraph 1, 55, 56, 58, 59–61, and 62 GC IV), which would not yet apply during an invasion.155

After a detailed analysis, another commentator has suggested that Articles 47, 48, 49, 51 paragraph 1, 53, 58, 59, 61 (1st sentence), 63, 64–75, 76, and 78 GC IV apply during the invasion phase, while Articles 50, 51 paragraphs 2–4, 52, 54–7, 60, 61 (starting with the 2nd sentence), 62, and 77 GC IV do not yet apply during an invasion.156

Both a flexible interpretation of the obligations and a functional understanding of occupation would generally solve all the examples mentioned by those who conclude that the ‘Pictet theory’ leads to unrealistic results.157

VI. The special case of occupation without armed resistanceParagraph 2 of Article 2 common to the Geneva Conventions covers a situation not cov-ered by paragraph 1: ‘Despite its wording [“even” if the occupation meets without armed resistance], paragraph 2 only addresses itself to cases of occupation with no a declaration of war and without hostilities.’158 In particular, paragraph 2 was introduced following the experience of the German occupation of Bohemia and Moravia in March 1939 and of Denmark in April 1940, which was not resisted by the Czechoslovak and Danish armed forces because such resistance was considered useless.159 However, it equally covers, first, the occupation of a country with no means to resist (for example, no armed forces), sec-ondly, the continued presence of foreign armed forces once the consent of the sovereign is

154 Zwanenburg, IRRC, above n 124, at 35. 155 See Siegrist, above n 139, at 47–77.156 Grignon, above n 17, at 133–43.157 Zwanenburg, IRRC, above n 124, at 34–5; Bothe, IRRC, above n 37, at 39 and 41.158 ICRC Commentary APs, para 65; Pictet Commentary GC IV, at 21–2; ICJ, Legal Consequences of the

Construction of a Wall, above n 92, para 95.159 Dinstein, above n 19, at 31–2; Kolb and Vité, above n 60, at 76.

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withdrawn, thirdly, cases where such presence otherwise becomes unlawful and, fourthly, an occupation resisted by armed non-state actors not controlled by the state.160 An exam-ple of the third case was the continued presence of South Africa in Namibia after the South African mandate terminated.161 As for the fourth case, one might also consider that Article 2 paragraph 1 common to the Geneva Conventions applies each time a state uses force on the territory of another state, without the consent of that state.

The foreign presence must be belligerent, present on the ground, and satisfy all other conditions mentioned above (MN 12–35). The territory must be ‘coercively’ seized, which some consider as a ‘state of war in the material sense’,162 while others call it ‘pacific’ coercive occupation but agree that IHL applies.163 The requirement that the adverse party loses effective control must, as suggested above, be understood as referring to the final control over the presence of military forces (see MN 26). In this sense the mere presence of for-eign forces without consent is sufficient.164 Indeed, when there is no armed resistance, the invader has even less reason and justification to interfere with or to replace the existing administration of civil life. Arguably, contrary to paragraph 1, the wording of paragraph 2 requires that the territory occupied is that of another High Contracting Party. This would, however, introduce an important jus ad bellum and legitimacy issue into the determina-tion of whether IHL is applicable. If all other conditions for the applicability of IHL of military occupation discussed above are fulfilled, in this writer’s view, it must be sufficient if a state invades a territory which is not its own, even if it denies that the territory is that of another state. The reference in paragraph 2 to the ‘territory of a High Contracting Party’ may simply be understood as clarifying in 1949 that the Geneva Conventions apply only between parties, and that the state controlling the territory before the invasion must be a party to the Geneva Conventions.

Article 2 paragraph 2 should make IHL applicable to UN-authorized operations which do not meet armed resistance and which establish control over a territory without the consent of the territorial state. Australia, for example, considered that IHL of military occupation applied de jure to its UN operation in Somalia, which met with no armed resistance from the territorial sovereign.165 More doubtful is whether the law of military occupation applies to UN-run peacekeeping forces deployed based upon Chapter VII of the UN Charter, meeting no armed resistance and effectively running a territory, when the territorial state does not consent. Paragraph 2 of Article 2 common to the Geneva Conventions suggests an affirma-tive answer. However, most would object that paragraph 2 is an exception clause applying IHL beyond armed conflicts, which must be limited to situations where the foreign military presence is that of another state. In any case, the IHL of military occupation would apply only if the international territorial administration is run or de facto controlled by military forces. Paragraph 2 does not cover every international presence not meeting the consent of the sover-eign, but only belligerent, i.e. military, presences meeting no armed resistance, the difference being that a military occupier could overcome armed resistance if it existed, while a civilian presence could not have done so.

160 Kolb and Vité, above n 60, at 76.161 Ibid, at 79–80. In UN Doc A/RES 2871 (XXVI), 20 December 1971, para 8, the UNGA explicitly calls

upon South Africa to respect GC IV.162 Dinstein, above n 19, at 31–2.163 M. Bothe, ‘Occupation, Pacific’, in Bernhardt (ed), above n 91, at 766–7; Roberts, above n 87, at 274–6.164 Koutroulis, above n 12, at 27; Kolb and Vité, above n 60, at 76.165 M. Kelly, Restoring and Maintaining Order in Complex Peace Operations (Leiden: Nijhoff, 1999), at 178.

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VII. Occupation in national liberation warsUnder Article 1(4) AP I, national liberation wars are subject to IHL of IACs, and both parties are then equally bound by the rules of IHL on military occupation. However, what terri-tory can be considered as occupied in national liberation wars? In the first place, it is highly unrealistic to expect a state labelled as a racist regime, or as one engaged in colonial domina-tion or alien occupation, to accept such classification in relation to itself, and such a state is consequently unlikely to accept that it has to comply with IHL of IACs in its entirety. Even less realistic would be to expect the national liberation movement to comply with the rules of belligerent occupation on any territory it seeks to liberate and therefore call its own territory. In theory, a racist regime would likely be considered as occupying the entire territory of the state it governs. In case of colonial domination, the entire territory of the colony would be occupied. As for alien occupation, this concept in Article 1(4) AP I is not the same as that of belligerent occupation in IHL166 (since in the case of belligerent occupation, the rules of IHL of IACs on occupied territories would already be applicable, thus depriving the notion of alien occupation in Article 1(4) AP I of any scope and purport). Alien occupation therefore does not necessarily entail the applicability of the law of belligerent occupation.167 However, it is to be expected that a territory controlled by an alien occupier and in which it deprives a distinct people of their right to self-determination, would be considered an occupied territory under IHL (at least if the alien occupier is present with its military forces).168

Conversely, a national liberation movement would have to comply with the rules of IHL on military occupation only in a territory other than that for which the people it represents has a right to self-determination, e.g. the territory of a state other than that against which the national liberation war is directed,169 the metropolitan territory of a colonial dominator, or a territory within the state affected by the national liberation war on which another people has a right to self-determination, if it acquires control over that territory. Lastly, the case of belligerent occupation without armed resistance probably does not apply to national liberation wars, as Article 1(4) AP I explicitly covers only ‘armed conflicts’.

C. Relevance in Non-International Armed Conflicts

Through the alleged existence of rules of customary international law common to non-international armed conflicts (NIACs) and IACs, the contemporary tendency is to bring the law of NIACs closer to the law of IACs; together with combatant and POW status, the legal regulation of military occupation constitutes one of the few sets of rules to escape such a tendency to merge the bodies of rules of IHL. Occupation presupposes an IAC.170 Indeed, as occupation involves control over territory with-out the consent of the authority that had control prior to the armed conflict, any application by analogy of the rules of IHL of military occupation to a NIAC can only refer to territory controlled by the insurgents, but never to the territory under

166 ICRC Commentary APs, para 112. 167 Contra Bothe/Partsch/Solf, at 266–7.168 Although this is not entirely clear from what they write, this opinion is probably shared by Kolb and

Vité, above n 60, at 86–7.169 Roberts, above n 87, at 292–3.170 Dinstein, above n 19, at 33–4; Gasser, above n 19, at 272; Kolb and Vité, above n 60, at 73.

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governmental control.171 However, IHL must treat both parties to an armed conflict equally. It would be impossible to convince insurgents to treat territory they liberated as occupied. There are nevertheless suggestions to apply by analogy the rules of IHL on military occupation to the legislative powers and detention authority of an armed group.172 Some also suggest that if, in the course of a NIAC, a secessionist authority gains control of parts of metropolitan territory over which it has no claim of seces-sion, it should apply IHL of military occupation. However, no legal basis is provided for such an obligation, and those suggesting it must admit that the metropolitan government taking control of secessionist territory cannot be required to apply IHL of military occupation.173

D. Legal Consequences of a Violation

Clearly, the notion of occupation cannot be violated; only the rules that become applicable in the course of an occupation can be violated. For such violations to be committed, it is immaterial whether the state or the individual erroneously considers that that rules did not apply, as long as the facts making them applicable are known. Nevertheless, in this first chapter on occupation, it is necessary to discuss the conduct criminalized in occupied territories, to analyse the relationship between the concept of occupation in IHL and that of jurisdiction in IHRL, and to mention specific efforts to enforce GC IV on military occupation.

I. The consequences of occupation in international criminal lawOnly one war crime expressly requires that the proscribed conduct takes place in an occupied territory: the deportation or transfer of protected persons within or out of an occupied territory in violation of Article 49 GC IV constitutes a grave breach under Article 147 GC IV. This is also a war crime under Article 8(2)(a)(vii) of the ICC Statute, which equally covers transfers of protected civilians out of a party’s own territory in violation of Article 45 GC IV. The (even voluntary) transfer of a party’s own population (which by definition does not consist of protected persons and is therefore not covered by Article 147 GC IV) is criminalized by Article 85(4)(a) AP I as a grave breach and under Article 8(2)(b)(viii) of the ICC Statute as a war crime if it is conducted by an Occupying Power and directed into an occupied territory. Pictet’s Commentary consid-ers that the extensive appropriation of property, covered by Article 147 GC IV, can only be committed in an occupied territory.174 While this may be the most frequent situation, it is submitted that pillage of property of protected persons, prohibited by Article 33 paragraph 2 GC IV, equally applicable on a party’s own territory, may also constitute a grave breach.

171 Spoerri, above n 14, at 185.172 D. Casalin, ‘Taking Prisoners: Reviewing the International Humanitarian Law Grounds for

Deprivation of Liberty by Armed Opposition Groups’, 93 IRRC 883 (2011) 743, at 756, and generally Ch 70, MN 71–76, of this volume.

173 Benvenisti, above n 8, at 61; M. Bothe, ‘Occupation, Belligerent’, in Bernhardt (ed), above n 91, at 765.174 Pictet Commentary GC IV, at 601.

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II. Occupation and jurisdiction under international human rights lawOnly persons who find themselves under the jurisdiction of a state party benefit from the protection of IHRL treaties.175 While the concept of jurisdiction is interpreted differ-ently under various IHRL treaties, human rights courts and treaty bodies consider that an occupied territory is under the jurisdiction of the Occupying Power.176 This is also the stand taken by the ICJ for, inter alia, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights.177 As soon as a territory is classified as occupied, a person on such territory may enforce through the available mechanisms and procedures of IHRL the rights protected by GC IV, if these rights find an equivalent in IHRL. This offers such persons an individual complaints mechanism not available under IHL.

III. Particular efforts to ensure respect by Israel for the rules on military occupation in Geneva Convention IV

Only as regards respect for GC IV, and in particular with regard to its rules applicable to occupied territories, and only with regard to Israel, has the UN called upon states par-ties to GC IV to meet and discuss their obligations under Article 1, to ensure respect for GC IV.178 Switzerland, the depositary of GC IV, has convened such meetings when it has received sufficient support from states,179 which was not the case for the last call by the UN General Assembly. Two Expert Meetings held in 1998,180 and a Conference of the High Contracting Parties to GC IV held in 1999 and reconvened in 2001,181 reiter-ated the applicability of GC IV to the Occupied Palestinian Territories and concern about lack of respect for that treaty by Israel. During these meetings, violations of GC IV were

175 See Art 1 ECHR/ACHR. Formally, the ACHPR and the ICESCR do not foresee such a limitation. Under the wording of Art 1 ICCPR, a state must guarantee the rights it protects to ‘all individuals within its territory and subject to its jurisdiction’. See generally M. Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford: OUP, 2011).

176 See, for the ECtHR, Loizidou v Turkey, above n 57, para 56; ECtHR, Cyprus v Turkey, above n 57, para 77; ECtHR, Al-Jedda v United Kingdom, above n 116, para 77; ECtHR, Al-Skeini, above n 136, para 142; and ECtHR, Hassan v United Kingdom, Judgment (Grand Chamber), 16 September 2014, paras 74–80. For the ICCPR, see HRCttee, Concluding Observations of the Human Rights Committee: Israel, 21 August 2003, UN Doc CCPR/CO/78/ISR, para 11; HRCttee, Concluding Observations of the Human Rights Committee: Israel, 18 August 1998, UN Doc CCPR/C/79/Add.93, para 10. For the ICESCR, see Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 23 May 2003, UN Doc E/C.12/1/Add.90, paras 15 and 31. For the Inter-American system, see IACommHR, Coard et al v United States, Case Report No 109/99, 1999, para 37; and for the African system, see ACommHPR, Democratic Republic of Congo v Burundi, Rwanda and Uganda, Com 227/1999, 25 May 2006.

177 ICJ, Legal Consequences of the Construction of a Wall, above n 92, paras 107–12; ICJ, DRC v Uganda, above n 16, paras 216–17. See generally as here Milanovic, above n 175, at 144–7.

178 See UN Docs S/RES/681 of 20 December 1990; A/RES/ES-10/2 of 5 May 1997; A/RES/ES-10/3 of 15 July 1997; A/RES/ES-10/4 of 19 November 1997; A/RES/ES-10/6 of 24 February 1999; A/RES/ES-10/10 of 7 May 2002; A/RES/ES-10/15 of 2 August 2004; A/RES 64/10 of 1 December 2009, para 5; A/RES 64/92 of 19 January 2010.

179 P.-Y. Fux and M. Zambelli, ‘Mise en oeuvre de la Quatrième Convention de Genève dans les territoires palestiniens occupés: historique d’un processus multilatéral (1997–2001)’, 84 IRRC 847 (2002) 661.

180 See Switzerland, Federal Department of Foreign Affairs, Experts’ Meeting on the Application of the Fourth Geneva Convention, Press release, Geneva, 11 June 1998, and Chairman’s Report, Experts’ Meeting on the Fourth Geneva Convention, Geneva, 27–9 October 1998, both available at <http://www.eda.admin.ch>.

181 Declaration Adopted at the Conference of High Contracting Parties to the Fourth Geneva Convention, 5 December 2001, 84 IRRC 847 (2002) 679.

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identified in general terms, in particular in occupied territories, and suggestions were put forward on how future violations might be prevented and what measures third states might take to implement their obligation to ensure respect for GC IV. In addition, UN organs dealing with human rights have dispatched several fact-finding missions to the Occupied Palestinian Territories, which dealt extensively with GC IV.182

E. Critical Assessment

The best protection possible under IHL is provided by the rules on military occupation. However, most contemporary armed conflicts are not covered by those rules because they are NIACs. Even in IACs, the emphasis of the law on military occupation on territory, over which a belligerent gains control displacing ‘the local sovereign’, is very old-fashioned and not adapted to many modern armed conflicts without frontlines. In these contem-porary conflicts, which are not about territory, and in which belligerents do not try to overcome the enemy by gaining control over its territory, air power, which is by definition not territorial, has an increasing role, and states often rely upon local insurgents in the enemy country, who reasonably cannot be expected to comply with the obligations of an occupier in their own country. The situations of military occupation that actually exist today are so few, disparate, and marked by historical and political specificities, that it is difficult to draw general conclusions from state practice, in particular on the concept and start of occupation.

If the protective effect of GC IV is insufficient in today’s situations of occupation, this is mainly due to general reasons concerning lack of respect by states for IHL and not to reasons specific to the rules of GC IV on military occupation. In addition, most Occupying Powers try to escape the opprobrium inherent in any classification of a terri-tory as occupied, and seek to avoid the ensuing far-reaching obligations by denying that their presence constitutes an occupation as defined in IHL. Such an avoidance strategy is facilitated by the absence of a definition of the concept of occupation in GC IV, on which the applicability of most of its provisions depends. The definition provided by the Hague Regulations is only slightly clearer. Neither clarifies how much control over how much territory is necessary for a foreign state to be an Occupying Power. As demonstrated in this contribution, IHL nevertheless excludes factors other than the facts—effective control on the ground—from the definition and therefore in the assessment of whether the IHL of military occupation applies.

Most bona fide controversies about the definition of occupation, which are general and abstract, i.e. not only due to whether a classifier wants to subject a certain situation to GC IV, turn on the dichotomy between clear-cut categories and a sliding scale. As shown throughout this contribution, this author favours a sliding scale, leading to a flex-ible interpretation of the amount of control and territory necessary to make the law of military occupation applicable—but therefore also a sliding scale of obligations, which increase according to the extent of control and of territory controlled. Such a sliding scale has many advantages. Specifically, it keeps GC IV realistic, adapting it to the infinite variety of real-life situations, makes the law applicable according to needs, and reduces the importance of theoretically thorny controversial binary categories such as existence versus

182 See lastly UN Doc A/HRC/RES/S-21/1 of 24 July 2014, para 13.

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* I thank Ms Nishat Nishat, LLM, for her thorough preparatory research when she was a doctoral stu-dent and research assistant at the University of Geneva, Ms Julia Grignon, professor at the University Laval, Canada, for the many ideas she gave me in her doctoral thesis on the temporal scope of application of IHL, which I supervised, and Ms Annie Hylton, LLM, and Ms Yvette Issar, LLM, research assistants at the Geneva Academy of International Humanitarian Law and Human Rights and the University of Geneva, respectively, for further research and the revision of this chapter. I am equally grateful to my co-editors for their useful and challenging comments and suggestions.

absence of control, or invasion versus occupation. De lege lata such a sliding scale may be based upon the interpretation of treaty terms and what states actually do on the ground, while their statements admittedly do not always point in this direction. On the other hand, this commentator must admit that clear-cut categories have advantages. Human beings reflecting on reality and regulating it have always known clear-cut categories with fundamentally different real (and legal) consequences, arguably to avoid abuse. A child is born or not, and a human being is dead or alive. The advantage of clear-cut categories in a system depending on self-application, without centralized adjudication and enforce-ment, as is the case for GC IV, is to reduce possible controversies, abuse, and self-serving, subjective evaluation. Soldiers who must apply the law in the field can be trained to apply the entire regime of the IHL of military occupation in certain situations, while they—or their lawyers—would perforce position their situation on a sliding scale at the point most favourable to them, e.g. consider that they have little control and therefore few obliga-tions. This author chooses to face such risks instead of accepting gaps in protection. The risk of subjective, self-serving interpretations cannot be avoided, even when adopting the clearest-cut category of occupation.

Marco Sassòli*


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