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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

I. Clauses without independent normative content

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1. Responsibilities - Article 29 of the Fourth Geneva Convention

  • 183  See Article 2 of the International Law Commission's Articles on State Responsibility.
  • 184  See Dinstein, The International..., at p. 57; Pictet, Commentary..., at p. 47; ICTY, Tadić case, s (...)

1Article 29 of the Fourth Geneva Convention lays down the overall responsibility of a State for the treatment of protected persons, who are in its hands. State responsibility arises when a binding international legal obligation is breached (an internationally wrongful act) and the conduct is attributable to the State responsible.183 Protected persons are considered to be in the hands of the occupying power when they are present in the occupied territory. Hence, it is not necessary that they be physically in enemy hands.184 The functional approach of occupation, however, and the consequent application of the provisions on occupation, is contingent on de facto authority or control over persons and, more controversially, objects present in the invaded territory. Once the necessary degree of authority or control has been attained, and hence a given provision of the law of belligerent occupation applies, the principle of State responsibility as set out in Article 29 of the Fourth Geneva Convention must consequently be applicable.

2. Inviolability of rights - Article 47 of the Fourth Geneva Convention

  • 185  See Article 47 of the Fourth Geneva Convention; Pictet, Commentary..., Article 47, at p. 274.
  • 186  Article 47 of the Fourth Geneva Convention.

2The primary aim of Article 47 of the Fourth Geneva Convention is to prevent protected persons from being deprived of their rights and safeguards laid down in the Fourth Geneva Convention.185 According to this provision, changes introduced into the institutions or government of the occupied territory, new agreements or annexation cannot be brought forward to deny the application of the Fourth Geneva Convention in its entirety. The expression “in any case or in any manner whatsoever”186 clearly underlines the absoluteness of this rule. In order to guarantee its effectiveness, Article 47 of the Fourth Geneva Convention cannot be contingent upon the establishment of occupation in the traditional sense and should be applied at all times.

  • 187  See also Article 7(1) of the Fourth Geneva Convention expressing the general rule limiting special (...)

3Admittedly, Article 47 of a Fourth Geneva Convention is generally of greatest importance only once a part of a State’s territory has been brought under the authority of the hostile army. Yet, a non-application of one of the fundamental principles of the Fourth Geneva Convention, namely that agreements with local authorities cannot be to the detriment of protected persons,187 would produce a gap of protection. By way of a de jure annexation, for instance, an invading power could abrogate the protection offered in the Fourth Geneva Convention during the invasion phase and hence do what is expressly forbidden for an occupying power. This simply cannot be within the spirit of the Fourth Geneva Convention and thus calls for an application of the functional beginning of belligerent occupation approach. Moreover, it needs to be stressed that the application of Article 47 of the Fourth Geneva Convention from the beginning of the invasion does not present any burden upon the invading troops since this provision merely sets out a negative duty.

3. Definition of protected persons - Article 4 of the Fourth Geneva Convention

  • 188  Pictet, Commentary..., Article 4, at p. 45.
  • 189  For a detailed analysis of Article 4 of the Fourth Geneva Convention see above at p. 18 onwards.
  • 190  See above at p. 22 onwards.

4Article 4 of the Fourth Geneva Convention is, as stated in the Commentary, “the key to the [Fourth Geneva] Convention”.188 It defines the persons who qualify as “protected persons” under the Fourth Geneva Convention and hence benefit from all its rights and safeguards.189 As explained above,190 that article also presents, in combination with Articles 2 and 6 of the Fourth Geneva Convention, the cornerstone of the functional beginning of belligerent occupation theory. As a logical consequence and in accordance with the wording of the text, individuals that meet the qualifications of the second and third paragraph of the article are, from the outset of an armed conflict, protected persons within the meaning of the Fourth Geneva Convention when they fall into the hands of a party to a conflict.

Notes

183  See Article 2 of the International Law Commission's Articles on State Responsibility.

184  See Dinstein, The International..., at p. 57; Pictet, Commentary..., at p. 47; ICTY, Tadić case, supra note 98, at para. 579.

185  See Article 47 of the Fourth Geneva Convention; Pictet, Commentary..., Article 47, at p. 274.

186  Article 47 of the Fourth Geneva Convention.

187  See also Article 7(1) of the Fourth Geneva Convention expressing the general rule limiting special agreements between High Contracting Parties, which is reaffirmed in Article 47 of the Fourth Geneva Convention.

188  Pictet, Commentary..., Article 4, at p. 45.

189  For a detailed analysis of Article 4 of the Fourth Geneva Convention see above at p. 18 onwards.

190  See above at p. 22 onwards.

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