11.6 PROTECTION OF THE POPULATION OF AN OCCUPIED TERRITORY
Under the law of belligerent occupation, the Occupying Power has certain duties with respect to the population of an occupied territory, including protected persons under the GC.
11.6.1 General Protections, Including Humane Treatment, of the Population of an Occupied Territory. The population of an occupied territory, like other protected persons under the GC, are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.107 They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats of violence, and against insults and public curiosity. Other provisions for the humane treatment of protected persons set forth in Articles 27 through 34 of the GC apply to the population of an occupied territory. For example, women must be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.108 Reprisals against protected persons and their property are prohibited.109 The taking of hostages is prohibited.110 In addition, protected persons in occupied territory shall have every facility for making application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them. 111
11.6.2 Overview of Additional Protections for the Population That Are Specific to Occupation. There are a number of protections for the population of occupied territory that are specific to occupation. For example, specific provision exists for the protection of children in occupied territory.112 Specific constraints exist on the authority of the Occupying Power to punish protected persons, direct their movement, or compel them to perform labor. 113 Provision also is made with respect to: (1) food and medical supplies of the population; (2) public health and hygiene; (3) spiritual assistance; and (4) relief efforts and consignments. 114 The following prohibitions also apply with respect to the inhabitants of occupied territory:
11.6.2.1 Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the Hostile State. It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile State.115
11.6.2.2 Prohibition Against General Penalties in Occupied Territory. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.116 Such penalties are prohibited, even if authorized under the law of the occupied territory. Collective penalties are prohibited as a general matter.117
11.6.3 Occupying Power’s Duty to Respect the Rights of Protected Persons Secured by the GC. The Occupying Power has certain obligations to respect the rights of protected persons secured by the GC. Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the GC by any change introduced, as the result of the occupation of a territory, into the institutions or government of the occupied 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.118 For example, an Occupying Power may not purport to annex occupied territory in order to avoid its responsibilities as an Occupying Power.119 The Occupying Power may not enter into any special agreements that would adversely affect the situation of protected persons, as defined by the GC, nor restrict the rights that the GC confers upon them.120 The Occupying Power may also not evade its responsibilities through the purported renunciation by protected persons of the rights secured to them by the GC and by any special agreements referred to in Article 7 of the GC.121 In certain cases, a protected person’s rights of communication under the GC may be forfeited for security reasons. 122
11.6.4 Citizens of Neutral States in Occupied Territory. Citizens of neutral States residing within an occupied territory are generally treated the same as other residents of occupied territory.123
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.97 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
11.3 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 the 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 the occupation lasts); • 49 (transfers, evacuation, and deportation); • 51, 52 (prohibitions against certain compulsory service and protection of workers); • 53 (respect for the 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
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