Military occupation and the laws of warThere have long been customary laws of belligerent occupation as part of the laws of war which gave some protection to the population under the military occupation of a belligerent power. These were clarified and supplemented by the Hague Conventions of 1907. Specifically "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State."[1] The first two articles of that section state:Art. 42.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.Art. 43.The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.In 1949 these laws governing belligerent occupation of an enemy state's territory were further extended by the adoption of the Fourth Geneva Convention (GCIV). Much of GCIV is relevant to protected persons in occupied territories and Section III: Occupied territories is a specific section covering the issue.Article 6 restricts the length of time that most of GCIV applies:The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.GCIV emphasised an important change in international law. The United Nations Charter (June 26, 1945) had prohibited war of aggression (See articles 1.1, 2.3, 2.4) and GCIV Article 47, the first paragraph in Section III: Occupied territories, restricted the territorial gains which could be made through war by stating:Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.Article 49 prohibits the forced mass movement of people out of or into occupied state's territory:Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. ... The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.Protocol I (1977): "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" has additional articles which cover military occupation but many countries including the U.S. are not signatory to this additional protocol.In the situation of a territorial cession as the result of war, the specification of a "receiving country" in the peace treaty merely means that the country in question is authorized by the international community to establish civil government in the territory. The military government of the principal occupying power will continue past the point in time when the peace treaty comes into force, until it is legally supplanted."Military government continues until legally supplanted" is the rule, as stated in Military Government and Martial Law, by William E. Birkhimer, 3rd edition 1914.In most wars some territory is placed under the authority of the hostile army. Most military occupations end with the cessation of hostilities. In some cases the occupied territory is returned and in others the land remains under the control of the occupying power but usually not as militarily occupied territory.Even if the foreign armed forces meet no armed resistance and there is no fighting, once territory comes under the effective control of the foreign armed forces the laws on occupation are applicable.As interpreted by Human Rights Watch, defending human rights worldwide (hrw.org); the names USA and Russia have been interchanged. These are excerpts extracted from their website:Does applying occupation law toUSA affect the status of the territory that USA occupies?Applying the law of occupation, or deeming USA an occupying power for the purposes of international humanitarian law, does not in any way affect the sovereignty of the territory. Sovereignty is not transferred to the occupying power.The International Committee of the Red Cross (ICRC) Commentary to the Fourth Geneva Convention notes that the obligations of the Convention begin as soon as there is contact between the civilian population of a territory and troops advancing into that territory, i.e. at the soonest possible moment. Under the Fourth Geneva Convention, protected persons are all those who find themselves in the hands of a party to the conflict or an occupying power of which they are not nationals. While all of the duties imposed on an occupying power may not become applicable immediately (some presuppose the presence of the occupation authorities for a fairly long period), the entirety of the provisions relating to the rights enjoyed by protected persons and their treatment become applicable immediately.What are the basic principles of international humanitarian law underlying military occupation?International humanitarian law provides that once an occupying power has assumed authority over a territory, it is obliged to restore and maintain, as far as possible, public order and safety (Hague, art. 43). Under the Fourth Geneva Convention, the occupying power must also respect the fundamental human rights of the territory’s inhabitants, including noncitizens (Geneva IV, arts. 29, 47) and ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation (G IV, arts. 55,56). Collective punishment and reprisals are prohibited (Protocol I, 75). Personnel of the International Red Cross/Red Crescent Movement must be allowed to carry out their humanitarian activities (G IV, art. 63).What are the protection obligations of an occupying power towards the local population?An occupying power is responsible for respecting the fundamental human rights of the population under its authority. All persons shall be treated humanely and without discrimination based on ethnicity, religion or other basis. This includes respecting family honor and rights, the lives of persons, and private property, as well as religious and customary convictions and practice.An occupying power is specifically prohibited from carrying out reprisals and collective penalties against persons or their property (G IV, art. 33) and from taking hostages (G IV, art. 34). In general, no one can be punished for acts for which he or she has not personally committed. All parties to a conflict are required to provide information on prisoners of war (G III, art. 122) and “protected persons” (civilian nationals) in their custody (G IV, art. 136).The occupying power is prohibited from forcibly transferring or deporting protected persons outside of the occupied territory irrespective of motive (G IV, art. 49).What are the obligations of an occupying power to provide for well-being of the population?Generally, an occupying power is responsible for ensuring that food and medical care is available to the population under its control, and to facilitate assistance by relief agencies.An occupying force has a duty to ensure the food and medical supplies of the population, as well as maintain hospitals and other medical services, “to the fullest extent of the means available to it” (G IV, arts. 55, 56). This includes protecting civilian hospitals, medical personnel, and the wounded and sick. Medical personnel, including recognized Red Cross/Red Crescent societies, shall be allowed to carry out their duties (G IV, arts. 56, 63). The occupying power shall make special efforts for children orphaned or separated from their families (G IV, art. 24) and facilitate the exchange of family news (G IV, arts. 25, 26).If any part of the population of an occupied territory is inadequately supplied, the occupying power shall facilitate relief by other states and impartial humanitarian agencies (G IV, art. 59). However, the provision of assistance by others does not relieve the occupying force of its responsibilities to meet the needs of the population (G IV, art. 60). The occupying power shall ensure that relief workers are respected and protected.When can civilians be detained or taken prisoner by an occupying power?The Fourth Geneva Convention permits the internment or assigned residence of protected persons for “imperative reasons of security.” This must be carried out in accordance with a regular procedure permissible under international humanitarian law and allow for the right of appeal and for review by a competent body at least every six months (G IV, art. 78). The Fourth Geneva Convention provides detailed regulations for the humane treatment of internees. The ICRC must be given access to all protected persons, wherever they are, whether or not they are deprived of their liberty.When can civilians be required to work by an occupying power?Adults (individuals 18 years or older) may be required to work as is necessary to maintain public utilities, and to meet needs of the USA army and humanitarian needs, such as activities related to feeding, sheltering, clothing, health care of the civilian population. People must be appropriately compensated for their work, and there can be no obligation to work based on any form of discrimination. People must not be transported to other places to carry out work, but perform it in the area of occupation. People should as far as possible be kept in the jobs they already hold and fair wages and conditions of employment as set out in legislation, must be met. (G IV, art. 51) Unpaid or abusive forced labor, or work that amounts to partaking in military operations, is strictly prohibited.What obligations exist concerning the property and resources of the occupied territory?In general, the destruction of private or public property is prohibited unless military operations make it absolutely necessary (G IV, art 53). Cultural property is entitled to special protection; the occupying power must take measures to preserve cultural property (Cultural Property Convention, art.5). As a rule, private property cannot be confiscated. Religious, charitable and educational institutions are to be treated as private property. The occupying power may requisition food and medical supplies for occupation forces and administrative personnel so long as the needs of the civilian population have been taken into account and fair payment is made (G IV, art. 55). Taxes and tariffs may also be imposed to defray the administrative costs of the occupation, including the cost of occupying forces (Hague, art. 49).Public properties are treated as either movable or immovable property. Movable government properties that may be used for military purposes (transport, weapons) are considered “spoils of war” and may be seized without compensation (Hague, art. 53). Immovable government properties (public buildings, real estate) may not be appropriated; however they can be used and administered by the occupying power so long as their assets are maintained (Hague, art. 55). Any loss of value from their use must be compensated.
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