Occupation

Debate: Is the law of occupation applicable to the invasion phase?title referring to ‘provisions common to the territories of the Parties to the conflictand to occupied territories’ could be read as encompassing not only own andoccupied territories, but also any other territory of a Party to the conflict. However,under a systemic interpretation, the term ‘common’ must perforce refer to whatappears in the following sections, II and III. Furthermore, the travaux préparatoiresshow that Part III was intended to cover (only) two categories of persons: aliens inthe territory of a Party to the conflict and the population of occupied territories. 20Not a single rule of Part III protects a civilian who is neither in a Party’s own nor inan occupied territory.Therefore, if invaded territory were not considered as occupied in the senseof the categories of Convention IV, ‘protected civilians’ (and the main purpose andobject of Convention IV is to protect ‘protected civilians’) falling into the hands ofthe enemy on invaded territory would not be protected by any rule of Part III. Itwould not be a violation of Convention IV to torture such an inhabitant of aninvaded territory, 21 to rape her, 22 to take her as a hostage, 23 or to subject her tocollective punishment. 24 All aforementioned conduct against protected persons isonly prohibited by Convention IV if those persons are aliens in a Party’s ownterritory or if they find themselves in an occupied territory. Some may object thatsuch conduct is prohibited by international human rights law (if it appliesextraterritorially, which some scholars and states would deny, in particular if there isno occupation, as Marten Zwanenburg and Michael Bothe would argue), Article 75of Additional Protocol I, and Article 3 Common to the Geneva Conventions as acommon minimum applicable in all armed conflicts. Others may add thatinhabitants of invaded territories remain covered by Chapter I of Section II of theHague Regulations on ‘Means of injuring the enemy, sieges, and bombardments’,byPart II of Convention IV on ‘General protection of populations against certainconsequences of war’, and by the dictates of public conscience of the famousMartens clause. However, while the last does not provide any detail and maytherefore deploy its protective effect only when belligerents act in good faith,Chapter I of Section II of the Hague Regulations deals mainly with conduct ofhostilities issues, and only its very general Article 22, stating that ‘[t]he right ofbelligerents to adopt means of injuring the enemy is not unlimited’, could beconsidered to cover the abovementioned issues. As for Part II of Convention IV, itdeals with entirely different issues and applies to all civilians, not only to protected20 Committee III, ‘Report to the Plenary Assembly’, inFinal Record of the Diplomatic Conference of Genevaof 1949, Berne, 1950–1951, Vol. IIA, p. 821: ‘Part III constitutes the main portion of our Convention. Twosituations presenting fundamental differences had to be dealt with: that of aliens in the territory of abelligerent State and that of the population-national or alien-resident in a country occupied by the enemy’.The ICRC’s ‘preliminary remarks’ to the text of the Geneva Conventions are even more explicit:‘[Convention IV] distinguishes between foreign nationals on the territory of a party to the conflict, and thepopulation of occupied territories. It is divided into five Sections. Section I contains provisions common tothe above two categories of persons ...’. See also The Geneva Conventions of 12 August 1949, ICRC,Geneva, 2010, Preliminary Remarks, p. 32.21 Article 32 of GC IV only applies in own and occupied territories.22 Article 27(2) of GC IV only applies in own and occupied territories.23 Article 34 of GC IV only applies in own and occupied territories.24 Article 33(1) of GC IV only applies in own and occupied territories.44