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The Functional Beginning of Belligerent Occupation

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Michael Siegrist

Part B: Feasibility of the Application of the Functional Beginning of Belligerent Occupation Theory

IV. Obligations to provide or respect due to activities of the occupying power

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1. Legislative competences - Articles 64 to 75 of the Fourth Geneva Convention

  • 310  See Pictet, Commentary..., Article 64, at p. 335.
  • 311  See Article 64(1) of the Fourth Geneva Convention; Also the context and Article 66 of the Fourth G (...)

1Article 43 of the 1907 Hague Regulations expresses the basic principle that an occupying power has to respect, unless absolutely prevented from doing so, the laws in force in the occupied country. Its “Geneva law counterpart”, Article 64 of the Fourth Geneva Convention, may be considered as elucidating the expression “unless absolutely prevented”.310 Notwithstanding that the first paragraph of Article 64 of the Fourth Geneva Convention seems to refer only to “penal laws”,311 the Commentary reaffirms that

  • 312  Pictet, Commentary..., Article 64, at p. 335.

“[…] the idea of the continuity of the legal system applies to the whole of the law (civil law and penal law) in the occupied territory. [...] there is no reason to infer a contrario that the occupation authorities are not also bound to respect the civil law of the country, or even its constitution.”312

  • 313   Sassòli, Marco, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, i (...)
  • 314  See Arai-Takahashi, The Law..., at p.121; Dinstein, The International..., at p. 111, calling for a (...)

2The second paragraph of Article 64 of the Fourth Geneva Convention then omits the reference to penal laws with respect to legislative activities by the occupying power, and thus seems to be broader in scope.313 One could also argue that the provision should be construed to encompass the whole legal system for both the occupying power’s discretion to repeal or suspend existing local law and for its legislative competencies.314

  • 315  See Article 64(1) of the Fourth Geneva Convention.

3Accordingly, an occupying power could repeal or suspend existing legislation for two reasons:315

  • existing provisions threaten the occupying power’s security. Provisions, for instance, that call for recruitment or resistance; or

  • existing provisions constitute an obstacle to fulfil the obligations of the Fourth Geneva Convention.

  • 316  See Article 64(2) of the Fourth Geneva Convention.

4The second paragraph of Article 64 of the Fourth Geneva Convention sets out three situations in which an occupying power may legislate. The enacted provision must be essential to:316

  • ensure the fulfilment of its obligations under the Fourth Geneva Convention;

  • protect the occupying power, its members and property, including establishments and lines of communication used by the occupying power; and

  • “[m]aintain the orderly government of the territory”.

5Note that the two first necessity exceptions converge with the ones permitting the repeal or suspension of existing legislation.

  • 317  See the observation made with regard to Article 4 of the Fourth Geneva Convention, above at p. 18.

6During an invasion the invading forces may encounter the enemy civilian population and, most likely, they will deem it necessary to impose their will and to take measures for their security. As a consequence of the functional beginning of belligerent occupation theory they must respect the laws in force in the invaded territory unless, of course, they constitute a threat to their security or impede the application of the Fourth Geneva Convention. The rule demanding respect of the laws in force in the occupied territory laid down in Article 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention is a negative duty that can be respected from the first moments of an invasion onwards. With the application of the functional beginning of belligerent occupation approach, Article 64 of the Fourth Geneva Convention would also offer an appropriate legal basis for legislative acts by an invading army in these early and, without any doubt, challenging times. At the same time, the application of the doctrine of the functional beginning of belligerent occupation provides protection from arbitrary acts in that the safeguards of Article 64 of the Fourth Geneva Convention, that is to say the necessity exceptions, would also apply from the beginning of the invasion. It should further be noted that Article 64 of the Fourth Geneva Convention is a perfect example of where a protected person need not be virtually “in the hands of” the enemy, but it is enough that the person might be affected or comes within the scope of application of the enacted legislation.317

  • 318  See Articles 65 to 75 of the Fourth Geneva Convention; although these articles refer to penal prov (...)
  • 319  See Article 65 of the Fourth Geneva Convention.

7An application of Article 64 of the Fourth Geneva Convention in accordance with the functional beginning of belligerent occupation theory requires as a consequence that an invading army also comply with several limitations and judicial guarantees set forth in the articles that follow this provision.318 With reference to legislative activities, this would be true for the obligation to publish and bring to the knowledge of the inhabitants the enacted penal provisions in the official language of the occupied territory before they enter into force. Furthermore, introduced penal provisions shall not have a retroactive effect.319

8Considering that the enactment of laws, in accordance with all corollary limitations and safeguards, is usually a highly complex process, it is very likely that a power would already have, or at least be very close to having, control as required by Article 42 of the 1907 Hague Regulations for a state of belligerent occupation.

2. Judicial system

9Having analysed the feasibility of the functional beginning of belligerent occupation theory for the legislative activities of an invading army, assessment now turns to the judicial system. Allowing an invading army to legislate in accordance with the functional beginning of belligerent occupation theory also has impacts on the judicial system.

2.1 Judges and public officials - Article 54 of the Fourth Geneva Convention

  • 320  See Article 54(1) of the Fourth Geneva Convention
  • 321  See Pictet, Commentary..., Article 54, at p. 304.
  • 322  See Ibid., at p. 305.
  • 323  See Article 54(2) of the Fourth Geneva Convention.
  • 324  See Article 54(2) of the Fourth Geneva Convention; Pictet, Commentary..., Article 54, at p. 308.

10The first paragraph of Article 54 of the Fourth Geneva Convention forbids an occupying power from altering the status of public officials and judges in the occupied territory. Neither may an occupying power sanction, coerce or discriminate against them if they do not fulfil their functions for reasons of conscience.320 The purpose of this provision is to ensure that public officials and judges are in a position to continue their pre-occupation duties as independently as possible.321 Since the superintendence passes to the occupying State, a continued performance of their duties may be in conflict with their conscience. Therefore, public officials and judges have, in principle, the right to resign without fearing sanctions or measures of coercion or discrimination.322 In accordance with paragraphs two to four of Article 51 of the Fourth Geneva Convention an occupying power may, however, compel them to continue their work.323 Furthermore, the occupying power has the right to remove public officials of any kind from their posts and for any reason.324 Yet, the continuation of the work of public officials and judges should, whenever possible, help the occupying power in achieving its duty to maintain public order and life as required by Article 43 of the 1907 Hague Regulations.

11No other rule deals with the status of public official and judges under the authority of a foreign power. On the one hand, the possibility of altering the status of public officials and judges, or even to remove them from their posts, usually requires a fair degree of authority and control of the area affected. The kind of authority and control necessary will most likely coincide with Article 42 of the 1907 Hague Regulations. Furthermore, as long as Article 54 of the Fourth Geneva Convention does not apply, judges and public officials remain protected persons and benefit of the protection generally accorded to such persons by the Geneva Conventions. On the other hand, Article 54 of the Fourth Geneva Convention could easily be applied in early phases of invasion and would prevent any possible gaps in protection. Moreover, an application of the functional beginning of belligerent occupation theory would give invading troops a legal basis to remove public officials who could use their authority in a detrimental manner.

12Although the non-application of the functional beginning of belligerent occupation approach would not create a serious gap in protection, the application of Article 54 of the Fourth Geneva Convention already at the early stages of invasion would clarify the relationship between the invading troops on the one side, and judges and public officials on the other.

2.2 Occupation courts - Articles 64(1) and 66 of the Fourth Geneva Convention

  • 325  See Article 64(1) second sentence of the Fourth Geneva Convention.
  • 326  Pictet, Commentary..., Article 64, at p. 336.
  • 327  Article 64(1) second sentence of the Fourth Geneva Convention.
  • 328  See Pictet, Commentary..., Article 64, at p. 336.

13As a general rule, an occupying power is required to allow existing courts to continue their work and to maintain jurisdiction over the local penal (and civil) laws in force.325In the same way as with existing legislation, an occupying power is permitted to repeal or suspend “courts or tribunals which have been instructed to apply inhumane or discriminatory laws”326 and thus represent an obstacle to the application of the Fourth Geneva Convention. The second exception to the general rule may be deduced from the “necessity for ensuring the effective administration of justice”.327 In order to fulfil this obligation an occupying power may call upon inhabitants to assume positions within the judicial system or may even itself set up its own courts applying local law.328

  • 329  See Article 66 of the Fourth Geneva Convention.

14The occupying power’s establishment of its own courts to deal with the violation of penal provisions it has enacted is expressly envisaged by Article 66 of the Fourth Geneva Convention. If it so wished, the occupying power may set up its own, properly constituted, non-political military courts. In any case, trial courts must sit in the occupied territory, and, whenever possible, courts of appeal as well.329

15What has been said with regard to the legislative powers of an invading army in accordance with the functional beginning of belligerent occupation theory is largely valid for the judicial system as well. First of all, invading forces shall, in principle, respect the existing courts and let them continue to work. It is again a negative duty that can be respected from the beginning of invasion. Subject to amendments or appointments where necessary and insofar as they are permitted by the Fourth Geneva Convention, the occupying power shall rely upon the existing judicial system in order to try protected persons. However, it should be noted that the establishment of courts on foreign territory and the trial of protected persons will usually require an Article 42 of the 1907 Hague Regulations like control. Nevertheless, the functional beginning of belligerent occupation theory explicitly outlaws summary trials of protected persons in invaded territory. Should an invading army indeed be in a position to carry out a trial already before a state of belligerent occupation has been established, the local courts or tribunals and the introduced military courts must also follow the safeguards and procedural provisions set out in Articles 67 to 75 of the Fourth Geneva Convention. These provisions relate to minimum guarantees regarding deprivation of liberty and fair trial of protected persons and set forth minimum requirements as to the pronouncement of the death penalty as well.

  • 330  See Article 68(1) of the Fourth Geneva Convention.
  • 331  See Article 69 of the Fourth Geneva Convention.

16According to Article 67 of the Fourth Geneva Convention, for instance, courts shall only apply penal provisions that were already in force at the time of commission of the offence and which are in conformity with general principles of law. In particular, the penalty must be proportionate to the offence. Offences intending simply to harm the occupying power and not falling within the ambit of offences justifying the death penalty may at most be punished with internment or simple imprisonment that is proportionate to the offence.330 Furthermore, any time a protected person accused of an offence spent in pre-trial detention must be deducted from the duration of imprisonment.331

17The first paragraph of Article 70 of the Fourth Geneva Convention, which seems at first sight to be at odds with the functional beginning of belligerent occupation theory, provides that:

  • 332  Article 70(1) of the Fourth Geneva Convention.

“Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war.”332

  • 333  See Article 76(1) of the Fourth Geneva Convention.
  • 334  See Article 76 of the Fourth Geneva Convention.

18For the functional beginning of belligerent occupation theory to make sense, this clause must be interpreted to mean that an invading army shall only arrest, prosecute or convict protected persons for acts or opinions expressed while they were within the sphere of control of the enemy forces, that is to say in their hands. Moreover, the invading army would be obliged to detain an accused or convicted protected person only within the occupied territory.333 This clause reiterates the prohibition of deportations set out in Article 49 of the Fourth Geneva Convention. Article 76 of the Fourth Geneva Convention also sets forth the conditions of how detained persons shall be treated.334

19It is only logical that the Articles 67 to 75 of the Fourth Geneva Convention apply from the moment that an invading or occupying power is in a position to either arrest or to sentence protected persons. Not applying these fundamental rules in accordance with the functional beginning of belligerent occupation theory, most of which are to be found in Article 75 of the 1977 Additional Protocol I and representing customary international humanitarian law, would create a gap in protection of persons being at the mercy of the enemy.

3. Assigned residence and internment - Article 78 of the Fourth Geneva Convention

  • 335  See Article 78(1) of the Fourth Geneva Convention.
  • 336  See Pictet, Commentary..., Article 78, at p. 368.

20Article 78 of the Fourth Geneva Convention authorises an occupying power to take safety measures and to subject protected persons to, at the most, assigned residence or internment for “imperative reasons of security”.335While the decision of who constitutes such a security risk remains with the occupying power, the second paragraph of Article 78 of the Fourth Geneva Convention requires a regular procedure including a right of appeal. Regarding the minimum requirements for the procedure, the provision refers to the one set out in Article 43 of the Fourth Geneva Convention relative to the interment of aliens in the territory of a party to the conflict.336

  • 337  See Articles 79 to 135 of the Fourth Geneva Convention.

21With the exception of Articles 42 and 43 of the Fourth Geneva Convention relative to aliens in the territory of a party to the conflict and Article 78 on occupied territories, no other provision of IHL provides a legal basis for imposing assigned residence and internment on protected persons. Requiring a state of belligerent occupation within the traditional meaning, and thus a strict distinction between invasion and belligerent occupation for the application of the provisions of Section III of Part III of the Fourth Geneva Convention would create a serious gap. As a consequence, an invading power would not have an express legal basis for subjecting protected persons presenting a security threat to assigned residence or internment. There would be a gap at least when it comes to the procedure. The functional beginning of belligerent occupation theory would thus be of service both for the invading troops and also for protected persons who would be protected by minimum safeguards and afforded detailed standards of treatment.337

Notes

310  See Pictet, Commentary..., Article 64, at p. 335.

311  See Article 64(1) of the Fourth Geneva Convention; Also the context and Article 66 of the Fourth Geneva Convention could lead to the conclusion that Article 64 of the Fourth Geneva Convention refers only to "penal laws".

312  Pictet, Commentary..., Article 64, at p. 335.

313   Sassòli, Marco, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, in: EJIL, Vol.16 no.4 (2005), pp. 661-694, at p. 669.

314  See Arai-Takahashi, The Law..., at p.121; Dinstein, The International..., at p. 111, calling for an application by analogy at least.

315  See Article 64(1) of the Fourth Geneva Convention.

316  See Article 64(2) of the Fourth Geneva Convention.

317  See the observation made with regard to Article 4 of the Fourth Geneva Convention, above at p. 18.

318  See Articles 65 to 75 of the Fourth Geneva Convention; although these articles refer to penal provisions enacted by the occupying power, most, if not all, should be applicable, at least by analogy, to newly-enacted civil law as well.

319  See Article 65 of the Fourth Geneva Convention.

320  See Article 54(1) of the Fourth Geneva Convention

321  See Pictet, Commentary..., Article 54, at p. 304.

322  See Ibid., at p. 305.

323  See Article 54(2) of the Fourth Geneva Convention.

324  See Article 54(2) of the Fourth Geneva Convention; Pictet, Commentary..., Article 54, at p. 308.

325  See Article 64(1) second sentence of the Fourth Geneva Convention.

326  Pictet, Commentary..., Article 64, at p. 336.

327  Article 64(1) second sentence of the Fourth Geneva Convention.

328  See Pictet, Commentary..., Article 64, at p. 336.

329  See Article 66 of the Fourth Geneva Convention.

330  See Article 68(1) of the Fourth Geneva Convention.

331  See Article 69 of the Fourth Geneva Convention.

332  Article 70(1) of the Fourth Geneva Convention.

333  See Article 76(1) of the Fourth Geneva Convention.

334  See Article 76 of the Fourth Geneva Convention.

335  See Article 78(1) of the Fourth Geneva Convention.

336  See Pictet, Commentary..., Article 78, at p. 368.

337  See Articles 79 to 135 of the Fourth Geneva Convention.

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