#17204 - International Humanitarian Law Belligerent Occupation - International Humanitarian Law / Law of Armed Conflict

Belligerent Occupation 2

Scope of Occupation 2

Material Scope 2

Personal Scope 2

Geographic Scope 2

Temporal Scope 2

Note on citations:

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

• You need an underlying IAC in order to get an occupation. A NIAC cannot lead to occupation unless it is internationalized into an IAC.

• HagueReg.42(1): Territory is considered occupied when it is actually placed under the authority of the hostile army.

  • Law of belligerent occupation begins to apply as soon as the factual conditions for the existence of a belligerent occupation are fulfilled [HB221].

  • UK Manual: control exists where (a) due to the presence of hostile armed forces, the former government has been rendered incapable of publicly exercising authority in the territory concerned; and (b) the occupying power, by contrast, is in a position to substitute its own authority for that of the former government.

• Occupied territory does not include areas where there is still significant fighting and in which the occupying power cannot make its authority felt within a reasonable time [HB528].

• It is not necessary that the occupation meet with armed resistance [GC.CA2].

  • It doesn’t matter if sovereignty over the territory is contested before occupation (i.e., between two other parties besides occupier), so long as the occupying power did not have sovereignty at the time [HB527].

• Unique trilateral relationship between occupying power, displaced sovereign, and population of the occupied territory.

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