Law of War 11.3 p1

11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONS

The status of belligerent occupation ends when the conditions for its application are no longer met. Certain GC obligations with respect to occupied territory continue for the duration of the occupation after the general close of military operations.

11.3.1 End of Occupation. Belligerent occupation ceases when the conditions for its application are no longer met.81 In particular, as discussed below, the status of belligerent

proclamation, may be properly regarded as existing from that time. This proclamation declared the city to be under martial law, and announced the principles by which the commanding general would be guided in its administration.").

76 For example, 1958 UK MANUAL ¶504 note 1 ("The practice in this matter in past wars appears to have been variable. Frequently the inhabitants were only warned to behave peaceably, not to communicate with the enemy, and to comply with requisitions; as for instance when the British troops entered France in 1813 and 1815. In 1870, in France, the Germans generally, but not always, proclaimed military jurisdiction directly[:] they took possession of a locality, by posting a notice which gave a list of offences against the troops for which the penalty of death would be inflicted.").

"Refer to § 11.9.3 (Procedural Obligation - Notification to the Population of Changes in Law); § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).

78 For example, Coalition Provisional Authority Regulation No. 1, §1(1) (May 16, 2003) ("The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration … .").

79 For example, John D. Negroponte & Jeremy Greenstock, Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/538 ("the United States, the United Kingdom, and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise the powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq …."). 80 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, 2 (May 22, 2003) ("Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the 'Authority'),"); U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc. S/RES/661 (1990) (Aug. 6, 1990) ("Determined to bring the invasion and occupation of Kuwait by Iraq to an end and to restore the sovereignty, independence and territorial integrity of Kuwait,").

81 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

780

>>23472461

Law of War 11.3 p2

occupation ceases when the invader no longer factually governs the occupied territory or when a hostile relationship no longer exists between the State of the occupied territory and the Occupying Power. 82

Belligerent occupation ends when the Occupying Power no longer has effectively placed the occupied territory under its control.83 For example, an uprising by the local population may prevent the Occupying Power from actually enforcing its authority over occupied territory. Similarly, the Occupying Power's expulsion or complete withdrawal from the territory would also suffice because the former Occupying Power generally would not be able to control sufficiently the occupied territory.

Belligerent occupation also may end when a hostile relationship no longer exists between the Occupying Power and the State of the occupied territory (although, as discussed in the following subsection, certain GC obligations may continue to apply).84 For example, if a new, independent government of the previously occupied territory assumes control of the territory and consents to the presence of the previously occupying forces, then such a situation would no longer be considered a belligerent occupation. Similarly, if a peace treaty legitimately transfers the territory to the sovereignty of the Occupying Power, then the Occupying Power would no longer be characterized as such. However, an Occupying Power is not permitted, under the law of belligerent occupation, to annex occupied territory.85

11.3.2 Duration of GC Obligations in the Case of Occupied Territory. In the home territory of parties to the conflict, the application of the GC shall cease on the general close of military operations.86

In the case of occupied territory, the application of the GC 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 State exercises the functions of government in such territory, by the provisions of the following Articles of the GC:

1 through 12 (general provisions and common articles, e.g., the Protecting Power continues to function, and the derogation for security reasons continues to apply);

⚫ 27, 29 through 34 (humane treatment);

• 47 (preserves rights as against change by annexation or arrangement with the local

82 WINTHROP, MILITARY LAW & PRECEDENTS 801 ("The status of military government continues from the inception of the actual occupation till the invader is expelled by force of arms, or himself abandons the conquest, or till, under a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the prevailing belligerent.").

83 Refer to § 11.2.2.1 (“Actually Placed" - Effectiveness of Occupation).

8+ Refer to § 11.2.2.3 ("Of the Hostile Army" - Belligerent Occupation Applies to Enemy Territory).

85 Refer to § 11.4.2 (Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty Over Occupied Territory).

86 Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).

>>23472461

Law of War 11.3 p3

authorities so long as occupation lasts);

⚫ 49 (transfers, evacuation, and deportation);

⚫ 51, 52 (prohibitions against certain compulsory service and protection of workers);

•

53 (respect for property);

⚫ 59, 61 through 63 (facilitating relief programs);

•

64 through 77 (criminal proceedings); and

•

143 (access by Protecting Powers and the ICRC).87

The one-year time limit for the cessation of the application of the GC (apart from the provisions that continue to apply to the extent that the Occupying Power exercises the functions of government in occupied territory) was proposed to account for situations like those of Germany and Japan after World War II.88 AP I provides that the 1949 Geneva Conventions and AP I shall cease to apply, in the case of occupied territories, on the termination of the occupation:89 coalition partners that are Occupying Powers and Parties to AP I would be bound by this rule.

In any case, individuals entitled to GC protection who remain in the custody of the

87 GC art. 6 ("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."). 88 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 623 ("Mr. CLATTENBURG (United States of America) said that his Delegation would propose an amendment to Article 4 to provide that the Civilians Convention should cease to apply not earlier than one year after the termination of hostilities. It would be noted that the Convention did not define the terms 'occupied territory' or 'military occupation'. It was the view of the United States Delegation that the obligations imposed by the Convention on an Occupying Power should be applicable to the period of hostilities and to the period of disorganization following on the hostilities; these obligations would vary according to the nature and duration of the occupation. Experience had shown that an Occupying Power did, in fact, exercise the majority of the governmental functions in occupied territory. A prolonged military occupation was, however, also characterized by a progressive return of governmental responsibility to local authorities. The Occupying Power should be bound by the obligations of the Convention only during such time as the institutions of the occupied territory were unable to provide for the needs of the inhabitants. The ultimate solution of such problems as revictualling, sanitation and war damage was not the responsibility of the Occupying Power. He quoted the case of the Allied occupation of Germany and Japan to show that the responsibility of the Occupying Powers for the welfare of the local populations was far less at present than during the period immediately following hostilities.").

89 AP I art. 3 ("Without prejudice to the provisions which are applicable at all times: (a) The Conventions and this Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol; (b) The application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation, except, in either circumstance, for those persons whose final release, repatriation or reestablishment takes place thereafter. These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment.").

Occupying Power following the end of occupation retain that protection until their release, repatriation, or re-establishment." In addition, it may be appropriate following the end of occupation to continue to

Occupying Power following the end of occupation retain that protection until their release, repatriation, or re-establishment." In addition, it may be appropriate following the end of occupation to continue to apply by analogy certain rules from the law of belligerent occupation, even if such rules do not apply as a matter of law."1