Occupied Territory
In international law, a territory is considered “occupied” when it is actually placed under the authority of the hostile army.
The definition of occupation and the obligations of the occupying power were initially codified at the end of the nineteenth century. The definition still in force and commonly used nowadays is the one contained in the Regulations Concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 August 1907 (H.IV). Section III of the regulations details the rights and obligations of the military authority over enemy territory (Arts. 42–56). These are very old regulations that, according to the International Court of Justice, have acquired the status of international customary law (infra Jurisprudence). This definition takes into account the effective control of the territory by a hostile authority and seeks to regulate the responsibility of such an authority. International humanitarian law stipulates that the definition of occupation only extends to territories where such authority has been established and can be exercised (H.IV Art. 42).
Contemporary international humanitarian law has clarified and added to the rights and duties of occupying forces, the rights of the populations of occupied territory, and the rules for administering such territory (GIV Arts. 47–78; API Arts. 63, 69, 72–79)
Several recent decisions by international courts have also confirmed that the occupying power is obliged to comply with its human rights obligations in occupied territories and in respect of people placed under its effective control as a result of occupation or detention. These decisions thus confirm that the application of international humanitarian law is complementary to the conventions on human rights in these situations. The European Court of Human Rights (ECHR) has notably passed judgments on violations of the European Convention committed by European countries in relation to their intervention in Iraq and military occupation of the country (infra Jurisprudence).
According to humanitarian law, occupation falls in the definition of international armed conflict and is regulated as such by the four Geneva Conventions and Additional Protocol I. The occupying power faces specific obligations where it has an effective control over the territories occupied. These include obligations related to respect for human rights, law, and order, in addition to respect for relevant provisions of humanitarian law related to occupation. The basic obligations of the occupying power under IHL are to maintain law and order and public life in the occupied territory. For the most part, the occupying power must follow the laws that were already in force in that territory (H.IV Art. 43).
In situations where armed resistance is strong enough to prevent the occupying power from efficiently controlling the territory, general provisions of international humanitarian law applicable to international armed conflict continue to apply.
▸ European Court of Human Rights ▸ Human rights ▸ International Court of Justice ▸ International humanitarian law
Sometimes, occupying forces do not succeed in establishing or exercising authority over a certain territory—for instance, because of hostile acts committed against them by combatants of the occupied territory. In such cases, humanitarian law does not consider these areas as occupied territories but instead as invaded territories. In other words, they are battlefields, and the rules that apply to them are the general rules of armed conflict.
Relief Supplies and Actions
The occupying power has the duty to ensure that the adequate provision of food and medical supplies is provided, as well as clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory, and objects necessary for religious worship (GCIV Arts. 55, 58; API Art. 69).
The occupying power must allow the protecting power, or the ICRC and other impartial humanitarian organizations, to verify the state of these supplies in occupied territories, and to visit protected persons so as to monitor their condition (GCIV Arts. 30, 55, and 143). It is also under the obligation to allow the ICRC or any other impartial humanitarian organization to undertake their own strictly humanitarian relief actions aimed at this population. All States must allow and facilitate rapid and unimpeded passage of all relief supplies and must not divert them, in any way whatsoever, from their destination. The only restrictions that parties to the conflict may impose are technical ones, or they may ask for guarantees that the relief is destined to the population in need and will not be used by the adverse power.
The fact that humanitarian organizations are delivering relief in no way relieves the occupying power of any of its own responsibilities to ensure that the population is properly supplied (GCIV Arts. 59–62 and 108–111; API Arts. 69–71).
▸ Relief ▸ Right of access ▸ Right of humanitarian initiative ▸ Supplies
Requisitions and Medical Duties
The occupying power may only requisition food, medical supplies, clothing, bedding, means of shelter, and other supplies essential to the survival of the civilian population of the occupied territory, for use by its forces and administration, if the needs of the civilian population in the occupied territory are covered (GCIV Art. 55). These requisitions must not be of a kind to involve the inhabitants of occupied territories in an obligation to take part in the military operations of the occupying power (H.IV Art. 52).
The occupying power is entitled to requisition of civilian hospitals on strictly limited conditions. This can only be temporary, in case of urgent necessity for the care of wounded and sick, and only if suitable arrangements are made in due time to maintain the care and treatment of the other hospitals’ patients. It must also ensure that the needs of the civilian population are met and continue to be so (GCIV Arts. 56, 57; API Art. 14).
Forced Population Displacement
The occupying power must not transfer or deport the population of occupied territories or transfer parts of its own civilian population into the territory it occupies (GCIV Art. 49 and Rule 130 of the 2005 ICRC customary IHL study).
Legal Status of the Population (in Particular Children), Forced Labor, and Enlistment
The occupying power must respect the personal status of children and must not hinder the proper working of all institutions devoted to their care and education. It may not enlist them in formations or organizations that are subordinate to it. It must also maintain any preferential measures that may have been adopted in favor of children and mothers (GCIV Art. 50).
The occupying power may not compel persons protected by the Geneva Conventions to serve in its armed forces. It may not compel them to undertake any work that would involve them in military operations, and any work they do must be carried out only in the occupied territory where they are. In no case shall requisition of labor lead to a mobilization of workers in an organization of a military or semi-military character (GCIV Art. 51).
▸ Children ▸ Protected persons ▸ Women
Destruction and Looting
Any destruction by the occupying power of real estate or personal property is prohibited, unless such destruction is rendered absolutely necessary by military operations (GCIV Art. 53). Seizure, destruction or willful damage to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments or works of art and science, is forbidden and should be the subject of legal proceedings (H.IV Art. 56).
Rules of customary international humanitarian law applicable to international armed conflicts provide that in an occupied territory, (a) movable public property that can be used for military operations may be confiscated, (b) immovable public property must be administered according to the rule of usufruct, and (c) private property must be respected and may not be confiscated except where destruction or seizure of such property is required by imperative military necessity (Rule 51 of customary IHL study; H.IV Arts. 53, 55, and 56).
Pillage is formally forbidden, and the occupying power is responsible for avoiding and punishing such acts committed by its own combatants and agents (H.IV Art. 47). The obligation on the occupying power to be vigilant and take action also extends to acts committed by third parties and autonomous armed groups operating in the occupied territory (infra Jurisprudence).
Justice and Judicial Guarantees
The justice system for civilians in occupied territories must respect certain judicial guarantees established by the Geneva Conventions (GCIV Arts. 47, 54, and 64–75). Additional details are given in the entry on ▸ Judicial guarantees (Section II) .
These provisions establish the following:
- The courts of occupied territories continue to operate, and their impartiality must be respected.
- The occupying power may not alter the status of public officials or judges, or in any way apply sanctions to or take measures of coercion or discrimination against them (GCIV Art. 54).
- The criminal law of the occupied territory remains in force. The occupying power may, however, adopt penal provisions aimed at ensuring the administration of the territory and the security of the occupying power, its members, property, and administration (GCIV Art. 64). These penal provisions shall not come into force before they have been published, and their effect shall not be retroactive (GCIV Art. 65).
- In case of a breach of the penal provisions enacted by virtue of Article 64, the occupying power may hand over an accused to its military courts, as long as its courts are “properly constituted,” “non-political,” and sit in the occupied territory (GCIV Art. 66).
- Individuals must not be “arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war” (GCIV Art. 70).
- The trial procedure must respect fundamental international judicial principles and guarantees, including those concerning the notification of the accused, the right to legal representation, and the right to appeal (GCIV Arts. 71–75).
- The death penalty may not be pronounced against a protected person unless the person is guilty of espionage, serious acts of sabotage against the military installations of the occupying power, or intentional offenses that caused the death of one or more persons. Furthermore, the death penalty can only be applied if such offenses were punishable by death under the law of the occupied territory in force before the occupation began. In any case, the death penalty may not be pronounced against an individual who was under eighteen years of age at the time of the offense (GCIV Art. 68). A person sentenced to death shall always have the right to appeal such a ruling (GCIV Art. 75).
Detention and Internment
Protected persons accused of offenses must be detained in the occupied country and, if convicted, serve their sentences therein (GCIV Art. 76). ▸ Detention
The Geneva Conventions establish specific rights and guarantees of treatment for persons who are interned by the occupying power. ▸ Internment
Resistance
Humanitarian law acknowledges the specificity of occupation and grants, upon conditions, the prisoner-of-war guarantees of treatment to civilians and members of militia taking part in hostilities on these territories.
Inhabitants of a non-occupied territories who, on the approach of the enemy, spontaneously take up arm to resist the invading forces, without having had time to form themselves into regular armed units, are considered prisoners of war, provided that they carry arms openly and respect the law and customs of war (GCIII Art. 4.6).
Members of militia and of organized resistance movements include those operating in occupied territory. They must be considered prisoners of war if they fall into the power of an adverse party, as long as they:
- are commanded by a person responsible for his or her subordinates;
- have a fixed distinctive sign recognizable at a distance;
- carry arms openly;
- conduct their operations in accordance with the laws and customs of war (GCIII Art. 4.2, API Art. 44).
A combatant who falls into the hands of an adverse party while failing to meet the requirements forfeits his right to be a prisoner of war, but is, nevertheless, entitled to protection equivalent in all respects to those accorded to prisoners of war by the Third Convention and by Additional Protocol I (API Art. 44.4).
A person who takes part in hostilities and falls into the power of an adverse party is presumed to be a prisoner of war and is therefore protected by the Third Geneva Convention. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he will continue to have such status until such time as his status has been determined by a competent tribunal (API Art. 45). Individuals who, having taken part in hostilities, are not accorded prisoner-of-war status and who are not covered by more favorable treatment according to Geneva Convention IV enjoy at all times the fundamental guarantees as set forth in Article 75 of Additional Protocol I. On occupied territory, and except where held for spying, detainees are further accorded the right to communicate with the International Committee of the Red Cross, as provided for under the Geneva Conventions.
Apart from the spontaneous uprising taking place before the occupation, humanitarian law also protects civilians taking part in hostilities in both international and non-international conflicts, except during such times when they directly take part in hostilities (API Art. 51.3, APII Art. 13.3). They may, under certain circumstances, enjoy prisoner-of-war treatment (API Art. 45). In cases of doubt as to whether an individual is a civilian, they will be considered a civilian (API Art. 50). ▸ Combatants ▸ Fundamental guarantees ▸ Prisoners of war; Resistance movements
▸ Annexation ▸ Detention ▸ International humanitarian law ▸ Internment ▸ Judicial guarantees ▸ Prisoners of war ▸ Protected persons ▸ Protecting Powers ▸ Relief ▸ Responsibility ▸ Right of access ▸ Right of humanitarian initiative ▸ Safety ▸ Supplies
Jurisprudence
- The International Court of Justice
The International Court of Justice (ICJ) has addressed the question of the definition of occupation and the obligations of the occupying power in two emblematic cases concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, ICJ Reports 2004, p. 136; hereafter referred to as “ The Wall ”) and the Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda , Judgment, ICJ Reports 2005, p. 168; hereinafter referred to as “ Democratic Republic of Congo v. Uganda ”).
The ICJ confirmed the customary nature of part of this law, which is therefore not subject to a formal ratification procedure by the occupying State: “As regards international humanitarian law, the Court would first note that Israel is not a party to the Fourth Hague Convention of 1907, to which the Hague regulations are annexed. . . . The Court considers that the provisions of the Hague Regulations have become part of customary law” ( The Wall , para. 89).
The ICJ confirmed the legal definition of occupation: “under customary international law as reflected in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907, a territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised” ( Democratic Republic of Congo v. Uganda , para. 172; and The Wall , paras. 78, 89).
It stipulates that for the presence of foreign armed troops in a territory to be classed as an occupation, they would need to have established a form of authority over the territory concerned.
In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an “occupying Power” in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government. In that event, any justification given by Uganda for its occupation would be of no relevance; nor would it be relevant whether or not Uganda had established a structured military administration of the territory occupied. ( Democratic Republic of Congo v. Uganda , para. 173)
The ICJ has laid down the obligations incumbent on the occupying power. Its responsibilities include a duty of vigilance and the obligation to ensure the safety of the inhabitants, in particular in respect of acts of violence or pillage committed by the agents of the occupying power but also by groups external to it, acting in the occupied territory. The Court has effectively confirmed that the occupying power
was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. ( Democratic Republic of Congo v. Uganda , para. 178).
The Court stipulates that the occupying power is responsible both “for any acts of its military [on the occupied territory] that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account” ( Democratic Republic of Congo v. Uganda , paras. 179, 180). The Court held that “the fact that Uganda was the occupying Power in Ituri district extends Uganda’s obligation to take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory to cover private persons in this district and not only members of Ugandan military forces” ( Democratic Republic of Congo v. Uganda , para. 248). The Court concluded that
Uganda is internationally responsible for acts of looting, plundering and exploitation of the DRC’s natural resources committed by members of the UPDF in the territory of the DRC, for violating its obligation of vigilance in regard to these acts and for failing to comply with its obligations under Article 43 of the Hague Regulations of 1907 as an occupying Power in Ituri in respect of all acts of looting, plundering and exploitation of natural resources in the occupied territory. ( Democratic Republic of Congo v. Uganda , para. 250)
The ICJ has also confirmed that extraterritorial application of human rights conventions is an obligation incumbent on the occupying power. “The protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights” ( The Wall , para. 106). “Both branches of international law, namely international human rights law and international humanitarian law would have to be taken into consideration. . . . International human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories” ( Democratic Republic of Congo v. Uganda , paras. 216–17).
- International Criminal Tribunal for the Former Yugoslavia
The ICTY clarified the rules applicable to occupied territories in the Naletilic and Martinovic Case (Trial Chamber, Judgment, 31 March 2003, paras. 214–16). The ICTY Trial Chamber reiterated the wording of Article 42 of the 1907 Hague Regulations: “a 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 judgment stressed that military occupation imposes more onerous duties on an occupying power than on a party to an international armed conflict and that a further degree of control is required to establish occupation (paras. 214–16). The ICTY Trial Chamber also stressed that the occupying power must respect its obligations during such time as the occupation continues and on the overall territory that is occupied—whether occupied in totality or in part. Therefore, the Chamber found that it must determine on a case-by-case basis whether this degree of control was established at the relevant times and in the relevant places (para. 218).
- European Court of Human Rights (ECHR)
In the Al-Skeini and Al Jedda cases, the ECHR detailed the extraterritorial obligations regarding compliance with the European Convention on Human Rights by the British armed forces involved in the international military intervention in Iraq, resulting from their status as an occupying force. These obligations concerned in particular detention and respect for the right to life: Al-Skeini et al. v. the United Kingdom , Application no. 55721/07, Judgment (Grand Chamber), 7 July 2011; Al-Jedda v. the United Kingdom , Application no. 27021/08, Judgment (Grand Chamber), 7 July 2011.
In the Al-Skeini Case , the Court recognized two exceptions to the principle of territoriality in respect of the application of the European Convention on Human Rights. Following the overthrow of the Baas regime in Iraq, the Court held that the United Kingdom (with the United States) took over the exercise of all or part of the public powers normally exercised by a sovereign government in Iraq, up until the appointment of an interim government, and that as a result, the British government was under an obligation to comply with the European Convention on Human Rights in all its actions in Iraqi territory and with respect to the people placed under its control. The Court confirmed that a State that has signed up to the ECHR is obliged to apply the Convention outside its national territory, to the benefit of foreign nationals, whenever it is exercising control and authority over a foreign individual through its agents, and whenever it is exercising effective control over a territory other than its national territory as the result of a military action, regardless of the legitimacy of the action. The Court noted that the controlling State is responsible for guaranteeing all the rights contained in the ECHR and the Additional Protocols it has ratified, within the territory it is controlling. Ascertaining the degree to which control is effective is a matter of fact, which is determined by the Court, taking into account the power of the military presence of the State in the territory concerned and its ability to influence or subordinate the administrations or authorities present in the territory (paras. 131–40).
In the Al-Jedda Case , the ECHR confirmed the obligation incumbent on the British government regarding the extraterritorial application of the European Convention, in the context of its military activities in Iraq as an occupying power holding prisoners in the territory. It put forward an original interpretation of the complementary application of international humanitarian law and human rights. It held that the rules of the ECHR continue to apply in a conflict situation, as long as they do not directly contradict those of international humanitarian law. The Court thus believes that the more protective rules of the ECHR should prevail over other provisions relating to the law of armed conflict and the mandate of international forces derived from United Nations resolutions allowing occupying forces to detain individuals (paras. 105, 107, and 109).
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