MFA_Report_on_the_occupied_territories_March_2016_1

No exception or provision for derogation applies. The transfer of populations constitutes a “grave
breach” pursuant to article 85(4)(a) of Additional Protocol I, 1977, 584 and is also designated a war
crime under Article 8(2)(b)(8) of the Rome Statute of the International Criminal Court. Article 49(6)
of Geneva Convention IV is undoubtedly an obligation erga omnes, owed to the community of
States as a whole, and as such any State is entitled to invoke the responsibility of the perpetrator
for its breach. Furthermore, in accordance with the doctrine of State responsibility, the remedy,
in the case of breach of the prohibition on settlements in occupied territories, is reversion to the
status quo ante, providing that the occupying power must repatriate settlers. 585
The evidence shows clearly that Armenia has violated this prohibition by conducting a policy
and developing practices to establish settlements in the occupied territories, in breach of
international law. Over the period since the beginning of the conflict, significant numbers of
Armenian settlers have been encouraged to move to the occupied areas depopulated of their
Azerbaijani inhabitants. 586 Plainly, settlements established in the occupied territories of Azerbaijan
are illegal, for they are designed to expand the economic and political penetration of Armenia in
those territories, prevent the expelled Azerbaijani population from returning to their homes and
thus impose the results of the unlawful use of force.
Protection of property rights
In situations of military occupation private and public property situated in occupied territories is
particularly protected and relevant rules apply both to the physical integrity and to the ownership
of such property. International humanitarian law prohibits pillage, plundering and exploitation of
natural resources as well as destruction or unlawful appropriation of public and private property
in an occupied territory. 587
The occupying State is no more than the administrator of public property and must safeguard
the capital of these properties, and administer them in accordance with the rules of usufruct. 588
Limitations imposed on an occupant are derived from the temporary nature of the occupation
and the lack of sovereignty of the occupying power.
The usufructuary principle forbids wasteful or negligent destruction of the capital value, whether
by excessive mining or other abusive exploitation. 589 In the Flick case before the US Military
Tribunal at Nuremberg in 1947, the accused, the principal proprietor of a large group of German
industrial enterprises, was charged with war crimes, inter alia, for offences against property in
the countries and territories occupied by Germany, and ultimately found guilty on this count. The
Tribunal noted that:
“…wherever the occupying power acts or holds itself out as owner of the public property
owned by the occupied country, Article 55 [of the 1907 Hague Regulations] is violated.
The same applies if the occupying power or its agents who took possession of public
buildings or factories or plants, assert ownership, remove equipment of machinery, and
ship it to their own country, or make any other use of the property which is incompatible
with usufruct.” 590
Plainly, the occupier may not use land belonging to the occupied State and the resources of the
occupied territory, as well as exploit the economy of the territory for its own domestic purposes,
584
Article 85 (4) (a) defines as a grave breach of the Protocol: “The transfer by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside
this territory, in violation of Article 49 of the Fourth Convention”.
585
See Yaël Ronen, “Status of Settlers Implanted by Illegal Territorial Regimes”, 79 British Yearbook of International Law 194 (2008), pp.
194-263, at p. 231.
586
For more information, see Chapter “D” VIII of this report.
587
See The Hague Regulations, Articles 46, 47, 52, 55, 56; Geneva Convention IV, Articles 33, 53.
588
See The Hague Regulations, Article 55.
589
Ibid., see also Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), p. 214.
590
United States, Military Tribunal at Nuremberg, Flick case, Judgment of 22 December 1947, cited in Jean-Marie Henckaerts and
Louise Doswald-Beck (eds.), ICRC Customary International Humanitarian Law Volume II: Practice (Cambridge: Cambridge University
Press, 2005), p. 1041.
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