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 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 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 Occupying Power following the end of occupation retain that protection until their release, repatriation, or re-establishment. 90 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. 91

11.4 LEGAL POSITION OF THE OCCUPYING POWER

Military occupation of enemy territory involves a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory.92 The fact of occupation gives the Occupying Power the right to govern enemy territory temporarily, but does not transfer sovereignty over occupied territory to the Occupying Power.

11.4.1 Right of the Occupying Power to Govern the Enemy Territory Temporarily. The right to govern the territory of the enemy during its military occupation is one of the incidents of war.93 By the fact of occupation (i.e., the Occupying Power’s established power over occupied territory), the Occupying Power is conferred the authority to exercise some of the rights of sovereignty.94 The exercise of these sovereign rights also results from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force, and the failure or inability of the legitimate government to exercise its functions, or the undesirability of allowing it to do so.95

11.4.2 Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty Over Occupied Territory. Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the Occupying Power. 96 Occupation is essentially provisional.

Because sovereignty is not vested in the Occupying Power, the fact of military occupation does not authorize the Occupying Power to take certain actions. For example, the Occupying Power is not authorized by the fact of belligerent occupation to annex occupied territory or to create a new State.98 In addition, the Occupying Power may not compel the inhabitants of occupied territory to become its nationals or otherwise to swear allegiance to it.99 Similarly, in view of the provisional nature of belligerent occupation, the authority of the Occupying Power under occupation law has been interpreted as being subject to limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.100

11.5 DUTY OF THE OCCUPYING POWER TO ENSURE PUBLIC ORDER AND SAFETY

The authority of the legitimate power having in fact passed into the hands of the Occupying Power, the latter shall take all the measures in its 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. 101 This principle has been recognized as customary international law.102

The Occupying Power has a general duty to maintain public order and to provide for the preservation of rights of the inhabitants, including rights to their private property.10

11.5.1 Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and Safety. The Occupying Power’s duty to take all the measures in its power to restore and ensure, as far as possible, public order and safety also provides it authority take such actions. For example, the Occupying Power may enact provisions to maintain the orderly government of the territory.10

11.5.2 Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country. The duty to respect, unless absolutely prevented, the laws in force in the country prohibits the Occupying Power from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory. 105

The duty to respect, unless absolutely prevented, the laws in force in the country has been interpreted not to apply to local administrative laws, such as regulations, executive orders, ordinances, and decrees.106