Occupation

Volume 94 Number 885 Spring 2012hands directly, as a prisoner is. The mere fact of being in the territory of a Partyto the conflict or in occupied territory implies that one is in the power or ‘hands’of the Occupying Power. It is possible that this power will never actually beexercised over the protected person: very likely an inhabitant of an occupiedterritory will never have anything to do with the Occupying Power or itsorganizations. In other words, the expression ‘in the hands of’ need notnecessarily be understood in the physical sense; it simply means that the personis in territory which is under the control of the Power in question. 7Accepting the Pictet theory would lead to a situation in which the determinationwhether a person is a ‘protected person’ is conflated with the test for determiningwhether there is an occupation. This is difficult to reconcile with the existence of asection in the Fourth Geneva Convention that is specifically devoted to situations ofoccupation. It would also raise the question whether a distinction must be madebetween persons and goods as regards the situations in which they are protected.Part III, Section III of the Fourth Geneva Convention contains provisions protectingpersons as well as provisions protecting goods. Under the Pictet theory, thethreshold for application of the former would be lower than for the latter. Theformer would be protected by virtue of Article 4 of the Fourth Geneva Conventionas soon as they found themselves in the hands of a Party to the conflict, whereas thelatter would presumably only be protected in the case of an occupation in the senseof the Hague Regulations.There is nothing in the travaux préparatoires of the Geneva Conventions tosuggest that the drafters intended to depart from the previously accepted notion ofoccupation. If it had been their intention to include such a radical departure in theFourth Geneva Convention, one would at the very least expect that such anintention would have been mentioned during the debates.It is true that, if the Pictet theory is rejected, persons finding themselves inthe hands of invading forces enjoy less protection than persons in the hands of anOccupying Power. Such a difference in levels of protection between different groupsof persons is, however, no exception in the Geneva Conventions. It is a fact thatthe drafters of the Geneva Conventions made certain distinctions that have consequencesfor the level of protection afforded to particular groups of persons.The most obvious example is the distinction between international andnon-international armed conflicts. Article 4 of the Fourth Convention providesanother example of such a distinction. It provides that nationals of a neutralstate, who find themselves in the territory of a belligerent state, and nationals of a cobelligerentstate, shall not be regarded as ‘protected persons’ while the state ofwhich they are nationals has normal diplomatic representation in the state in whosehands they are. Like it or not, such distinctions are part and parcel of IHL as itpresently stands. That the object and purpose of the Geneva Conventions are of ahumanitarian nature does not change this. This object and purpose have an7 See J. S. Pictet, above note 3 (GV IV, Art. 4), available online at: http://www.icrc.org/ihl.nsf/COM/380-600007?OpenDocument (last visited 21 February 2012).33