|
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no person shall be transferred to another State if it is more likely than not that the person would
be tortured in the receiving country.637
10.35.3 Committees to Search for Dispersed Internees. By agreement between the
Detaining Power and the Powers concerned, committees may be set up after the close of
hostilities, or after the close of the occupation of territories, to search for dispersed internees.638
10.35.4 Costs of Returning Internees. The Detaining Power shall bear the expense of
returning released internees to the places where they were residing when interned, or, if it took
them into custody while they were in transit or on the high seas, the cost of completing their
journey or of their return to their point of departure.639
Where a Detaining Power refuses permission to reside in its territory to a released
internee who previously had his or her permanent domicile there, such Detaining Power shall
pay the cost of this internee’s repatriation.640 If, however, the internee elects to return to his or
her country on his or her own responsibility or in obedience to the Government of the Power to
which he or she owes allegiance, the Detaining Power need not pay the expenses of his or her
journey beyond the point of his or her departure from its territory.641
The Detaining Power need not pay the costs of repatriation of an internee who was
interned at his or her own request.642
If internees are transferred in accordance with Article 45 of the GC, the transferring and
receiving Powers shall agree on the portion of the above costs to be borne by each.643
The foregoing discussion shall not prejudice such special agreements as may be
concluded between parties to the conflict concerning the exchange and repatriation of their
637 Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).
638 GC art. 133 (“By agreement between the Detaining Power and the Powers concerned, committees may be set up
after the close of hostilities, or of the occupation of territories, to search for dispersed internees.”).
639 GPW art. 135 (“The Detaining Power shall bear the expense of returning released internees to the places where
they were residing when interned, or, if it took them into custody while they were in transit or on the high seas, the
cost of completing their journey or of their return to their point of departure.”).
640 GPW art. 135 (“Where a Detaining Power refuses permission to reside in its territory to a released internee who
previously had his permanent domicile therein, such Detaining Power shall pay the cost of the said internee’s
repatriation.”).
641 GPW art. 135 (“If, however, the internee elects to return to his country on his own responsibility or in obedience
to the Government of the Power to which he owes allegiance, the Detaining Power need not pay the expenses of his
journey beyond the point of his departure from its territory.”).
642 GPW art. 135 (“The Detaining Power need not pay the costs of repatriation of an internee who was interned at his
own request.”).
643 GPW art. 135 (“If internees are transferred in accordance with Article 45, the transferring and receiving Powers
shall agree on the portion of the above costs to be borne by each.”).
733
nationals in enemy hands.644
644 GC art. 135 (“The foregoing shall not prejudice such special agreements as may be concluded between Parties to
the conflict concerning the exchange and repatriation of their nationals in enemy hands.”).
734
XI - Military Occupation
Chapter Contents
11.1 Introduction
11.2 When Military Occupation Law Applies
11.3 End of Occupation and Duration of GC Obligations
11.4 Legal Position of the Occupying Power
11.5 Duty of the Occupying Power to Ensure Public Order and Safety
11.6 Protection of the Population of an Occupied Territory
11.7 Authority of the Occupying Power Over Inhabitants
11.8 Administration of Occupied Territory
11.9 Local Law and Legislation
11.10 Ordinary Courts in Occupied Territory
11.11 Criminal Law in Occupied Territory
11.12 Movement of Persons in Occupied Territory
11.13 Protection of Children in Occupied Territory
11.14 Food and Medical Supplies for the Civilian Population
11.15 Public Health and Hygiene
11.16 Spiritual Assistance
11.17 Relief Efforts and Consignments
11.18 Enemy Property During Occupation
11.19 Protection of Cultural Property During Occupation
11.20 Labor of Protected Persons in Occupied Territory
11.21 Judges and Other Public Officials
11.22 Public Finances and Taxes
11.23 Other Economic Regulation of Occupied Territory
11.1 INTRODUCTION
This Chapter addresses military occupation. The GC provides specific rules for the
internment of protected persons in occupation, which are addressed in Chapter X.
Military occupation is a temporary measure for administering territory under the control
of invading forces, and involves a complicated, trilateral set of legal relations between the
Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied
territory.1
The law of belligerent occupation seeks to account for both military and humanitarian
imperatives. The Occupying Power’s primary objective in conducting military occupation is to
further the purpose of the war in which the occupying forces are engaged and to ensure the
maintenance and security of those forces, but the Occupying Power is also bound to provide for
1 Refer to § 11.4 (Legal Position of the Occupying Power).
735
the interests and welfare of the civilian population of the occupied territory.2 The Occupying
Power has obligations related to the maintenance of public order and safety, and the protection of
civilians and property in occupied territory.3
11.1.1 Military Occupation - Notes on Terminology.
11.1.1.1 Military Occupation, Military Government, Belligerent Occupation, and
Martial Law. The practice of conducting military occupation is very old, and the law of military
occupation has long been part of the law of war.4 Military occupation is also called belligerent
occupation. The conduct of military occupation has also been characterized as an exercise of
“military government”5 or “martial law.”6
2 GREENSPAN, THE MODERN LAW OF LAND WARFARE 213 (“In considering the law on military occupation the dual
nature of such an occupation must be borne in mind. Its primary objective is to further the purpose of the war in
which the occupying forces are engaged and to ensure the maintenance and security of those forces; yet at the same
time the occupant is bound to provide for the interests and welfare of the civilian population of the occupied
territory.”).
3 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).
4 See, e.g., American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 542 (1828) (Marshall, C.J.) (“The usage of the
world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military
occupation, until its fate shall be determined at the treaty of peace.”); Thirty Hogsheads of Sugar v. Boyle, 13 U.S.
191, 195 (1815) (Marshall, C.J.) (“Some doubt has been suggested whether Santa Cruz, while in the possession of
Great Britain, could properly be considered as a British island. But for this doubt there can be no foundation.
Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every
commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he
retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British
island until it was restored to Denmark.”). See also WINTHROP, MILITARY LAW & PRECEDENTS 800-01 (“Instances
in our history of military government are presented in our Revolutionary war during the occupancy by the British of
Boston, New York and Philadelphia; at Castine, Maine, when taken and held by the British in 1814-15; and in the
provinces of Mexico in the course of the conquest of the same by our forces in 1846-7. It was however during the
late civil war, which, by reasons of its exceptional proportions, was assimilated to an international war, that Military
Government was more generally and variously exercised, and its nature more fully illustrated than at any previous
period of our history.”).
5 WINTHROP, MILITARY LAW & PRECEDENTS 799 (“By military government is meant that dominion exercised in war
by a belligerent power over territory of the enemy invaded and occupied by him and over the inhabitants thereof.
By most writers, prior to the appearance of the dissenting opinion of Chase, C.J., in Ex parte Milligan, this species
of government was designated in general terms as ‘martial law,’ and thus was confused with or not properly
distinguished from the martial law proper exerted at home under circumstances of emergency, and yet to be
considered.”); Ex parte Milligan, 71 U.S. 2, 141-42 (1866) (Chase, C.J., separate opinion) (“There are under the
Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised
in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states
or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection
within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the
National Government, when the public danger requires its exercise. The first of these may be called jurisdiction
under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise
providing for the government of the national forces; the second may be distinguished as MILITARY
GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military
commander under the direction of the President, with the express or implied sanction of Congress; while the third
may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the
action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of
736
This manual uses the terms “military occupation,” “belligerent occupation,” and
“occupation” to refer to situations governed by the law of belligerent occupation.
11.1.1.2 Occupying Power, Occupant, and Occupying State. Treaties or other
legal documents may refer to the State conducting the occupation as the “Occupying Power,”
“Occupying State,” or “occupant.” This manual uses the term “Occupying Power” to refer to a
State conducting an occupation.
In some cases, multiple States may conduct an occupation together, and each State may
be considered an Occupying Power.7
11.1.2 Military Occupation and Bodies of International Law.
11.1.2.1 Military Occupation and Other Law of War Rules. In general, the law of
war rules that are not specific to the occupation of enemy territory continue to apply to situations
that are addressed by those rules that may arise during occupation. For example, the rules for the
conduct of hostilities and the humane treatment of detainees apply also to combat operations and
detention operations, respectively, during occupation.
However, the fact of occupation triggers the application of additional rules specific to
occupation.8
11.1.2.2 Occupation and the Hague IV Regulations. Articles 42 through 56 of the
Hague IV Regulations address military occupation.
When the GC and the Hague IV Regulations are both applicable, the provisions of the
GC regarding occupation supplement the provisions of the Hague IV Regulations regarding
occupation.9
insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer
adequately secures public safety and private rights.”).
6 LIEBER CODE art. 1 (“A place, district, or country occupied by an enemy stands, in consequence of the occupation,
under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any
public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and
consequence of occupation or conquest. The presence of a hostile army proclaims its Martial Law.”).
7 For example, Supplemental Brief of the United States, Apr. 22, 2005, United States of America ex rel. DR, Inc. v.
Custer Battles, LLC, 376 F. Supp. 2d 617 (E.D. Va. 2005), 2005 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 228, 232 (“The United States and the United Kingdom, and other member states of the
Coalition were the occupying powers in Iraq under the laws and usages of war. The CPA was the administrative
device that the Coalition created under the laws and usages of war to perform civil government functions in liberated
Iraq during the brief period of occupation. As an active member of the Coalition, the United States played an
important role in, and had certain responsibilities for, the occupation, which it chose to fulfill through creation of
and participation in the CPA.”).
8 Refer to § 11.2 (When Military Occupation Law Applies).
9 Refer to § 19.16.5.2 (Relationship Between the GC and the 1899 Hague II and the 1907 Hague IV Conventions).
737
When the 1954 Hague Cultural Property Convention and the Hague IV Regulations are
both applicable, the provisions of the 1954 Hague Cultural Property Convention regarding
occupation supplement the provisions of the Hague IV Regulations regarding occupation.10
Although in some cases the Hague IV Regulations would not be applicable as a matter of
treaty law because belligerent States might not be Parties to Hague IV, many of the provisions in
Articles 42 through 56 of the Hague IV Regulations reflect customary international law.11 For
example, Article 42 of the Hague IV Regulations, which provides a standard for when the law of
belligerent occupation applies, is regarded as customary international law.12
11.1.2.3 Occupation and the 1949 Geneva Conventions. Common Article 2 of
the 1949 Geneva Conventions provides that “[t]he Convention shall also apply to all cases of
partial or total occupation of the territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.”13
Articles 47 through 78 of the GC specifically address occupied territories.14 Other
provisions of the GC also apply to occupied territory. For example, Articles 27 through 34 of the
GC contain provisions common to the territories of parties to the conflict and to occupied
territories.15
11.1.2.4 Occupation and the 1954 Hague Cultural Property Convention. The
1954 Hague Cultural Property Convention applies to all cases of partial or total occupation of the
territory of a High Contracting Party, even if this occupation meets with no armed resistance.16
10 Refer to § 19.17.1.1 (Relationship Between the 1954 Hague Cultural Property Convention and Certain 1899 and
1907 Hague Conventions).
11 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 253-54 (“With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article
6, Section (b), of the Charter were already recognized as War Crimes under international law. They were covered
by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva
Convention of 1929. … But it is argued that the Hague Convention does not apply in this case, because of the
‘general participation’ clause in Article 2 of the Hague Convention of 1907. … The rules of land warfare expressed
in the Convention undoubtedly represented an advance over existing international law at the time of their adoption.
But the convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it
thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all
civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in
Article 6 (b) of the Charter.”).
12 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).
13 GWS art. 2; GWS-SEA art. 2; GPW art. 2; GC art. 2.
14 Refer to § 19.16.5.1 (Application of Different Parts of the GC).
15 Refer to § 19.16.5.1 (Application of Different Parts of the GC).
16 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 18 (“The Convention shall also apply to all cases of partial
or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed
resistance.”).
738
The 1954 Hague Cultural Property Convention and the Regulations for the Execution of
the 1954 Hague Cultural Property Convention also have provisions that explicitly address
occupation.17
11.1.2.5 Occupation and U.N. Security Council Resolutions. The U.N. Security
Council may call upon Occupying Powers to comply with existing international law.18
Acting under the Charter of the United Nations, the U.N. Security Council may also
establish authorities or limitations that might interact with those otherwise applicable under
occupation law.19 For example, a U.N. Security Council authorization may provide additional
authority for an Occupying Power to govern occupied territory.20
In cases of conflict with obligations in other treaties or under customary international
law, such obligations provided by the U.N. Security Council may prevail.21 Thus, such authority
may be used to take action that would not otherwise be permissible under the law of belligerent
occupation.
11.1.2.6 Occupation and the ICCPR and Other Human Rights Treaties. It has
been the U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does
not create obligations for an Occupying Power with respect to occupied territory because a
contracting State’s obligations under the ICCPR only extend to persons within its territory and
17 Refer to § 11.19 (Protection of Cultural Property During Occupation).
18 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, ¶5 (May 22, 2003) (“Calls
upon all concerned to comply fully with their obligations under international law including in particular the Geneva
Conventions of 1949 and the Hague Regulations of 1907;”).
19 For example, John B. Bellinger, III, Legal Adviser, Department of State, United Nations Security Council
Resolutions and the Application of International Humanitarian Law, Human Rights and Refugee Law, Sept. 9, 2005,
2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 957-58 (“Prior to the Iraq intervention, lawyers
for the United States and its Coalition partners thoroughly analyzed a complex range of issues related to the
expected occupation of Iraq. This review involved developing an understanding of how the law of occupation—in
particular the Hague Regulations and Geneva Convention—would likely apply to Coalition activities. At the same
time, there already existed a broad and complex range of Chapter VII Security Council resolutions addressing a
number of issues, including Iraqi requirements to disarm, economic and arms embargos, and restrictions related to
the production and sale of Iraqi petroleum products. As the Coalition analyzed the principles of occupation law, we
were careful also to analyze the extent to which pre-existing Chapter VII resolutions included provisions that might
themselves establish authorities or limitations that might interact with those otherwise applicable under occupation
law.”).
20 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, ¶4 (May 22, 2003) (“Calls
upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to
promote the welfare of the Iraqi people through the effective administration of the territory, including in particular
working towards the restoration of conditions of security and stability and the creation of conditions in which the
Iraqi people can freely determine their own political future;”); Coalition Provisional Authority Regulation No. 1,
§1(1) (May 16, 2003) (“The CPA is vested with all executive, legislative and judicial authority necessary to achieve
its objectives, to be exercised under relevant U.N. Security Council resolutions, including Resolution 1483 (2003),
and the laws and usages of war. This authority shall be exercised by the CPA Administrator.”).
21 Refer to § 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions); § 3.5.4
(U.N. Security Council Decisions and Jus in Bello).
739
subject to its jurisdiction.22 Although persons within occupied territory are subject to the
jurisdiction of the Occupying Power for certain purposes, they are not within the Occupying
Power’s national territory. This limit to the scope of the ICCPR’s obligations was proposed by
the United States to preclude the creation of obligations for States with respect to territories that
they occupied, such as post-World War II Germany and Japan.23
In addition, the law of belligerent occupation is specially crafted to address the situation
of belligerent occupation. Thus, in cases of apparent conflict with other provisions of law that
are not intended to address the situation of belligerent occupation, there might be a presumption
that such provisions would not conflict with occupation law, or that occupation law likely would
prevail when addressing the situation of belligerent occupation.24
Other States, such as some coalition partners, may interpret their human rights treaty
obligations to create obligations for their military operations outside their home territory in the
context of belligerent occupation.25
Subject to the Occupying Power’s authority to change local law,26 an occupied State’s
domestic law that has been enacted pursuant to its human rights treaty obligations or that meets
the requirements of the occupied State’s human rights treaty obligations may continue to apply
during an occupation.
11.1.3 Application of Occupation Law to Situations Not Constituting Belligerent
Occupation. The law of belligerent occupation is only applicable as a matter of law when certain
conditions have been met.27 The law of belligerent occupation generally does not apply to (1)
mere invasion; (2) liberation of friendly territory; (3) non-international armed conflict; or (4)
22 Refer to § 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).
23 Eleanor Roosevelt, Chairman, U.N. Economic and Social Council, Commission on Human Rights, Sixth Session,
Summary Record of the Hundred and Thirty-Eighth Meeting, U.N. Doc. E/CN.4/SR.138 ¶34 (Apr. 6, 1950) (“The
purpose of the proposed addition was to make it clear that the draft Covenant would apply only to persons within the
territory and subject to the jurisdiction of contracting States. The United States was afraid that without such an
addition the draft Covenant might be construed as obliging the contracting States to enact legislation concerning
persons who, although outside its territory were technically within its jurisdiction for certain purposes. An
illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were
subject to the jurisdiction of the occupying States in certain respects, but were outside the scope of the legislation of
those States. Another illustration would be the case of leased territories: some countries leased certain territories
from others for limited purposes, and there might be questions of conflicting authority between the lessor nation and
the lessee nation.”). See also Eleanor Roosevelt, Chairman, U.N. Economic and Social Council, Commission on
Human Rights, Sixth Session, Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. Doc.
E/CN.4/SR.194 ¶14 (May 16, 1950) (“That [insertion of language] would limit the application of the covenant only
to persons within its territory and subject to its jurisdiction. By this amendment the United States Government
would not, by ratifying the covenant, be assuming an obligation to ensure the rights recognized in it to the citizens of
countries under United States occupation.”).
24 Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).
25 Refer to § 1.6.3.2 (Different Views on the Applicability of Human Rights Treaties).
26 Refer to § 11.9 (Local Law and Legislation).
27 Refer to § 11.2 (When Military Occupation Law Applies).
740
post-war situations (except for certain provisions of the GC). Nonetheless, it may be appropriate
to apply rules from the law of belligerent occupation in such situations.
11.1.3.1 Mere Invasion. Mere physical presence of a belligerent’s military forces
in the territory of its enemy alone does not constitute military occupation. Such presence might
not constitute an effective and firm possession of enemy territory, or the belligerent State might
lack the intention to displace and substitute the enemy State’s authority with its own.28
Guidance for the U.S. armed forces has sought, to the extent possible, to apply the rules
of the law of occupation as a matter of policy to areas through which U.S. forces are passing, and
even on the battlefield.29
11.1.3.2 Liberation of Friendly Territory. The law of belligerent occupation does
not apply to the liberation of friendly territory.30 Indeed, a belligerent occupation presupposes
that the Occupying Power is hostile in relation to the State whose territory is being occupied.31
The administration of liberated territory may be conducted in accordance with a civil
affairs agreement between the co-belligerent States.32 In the absence of such an agreement, a
military government may be established in the area as a provisional and interim measure.33 The
28 Refer to § 11.2.2.1 (“Actually Placed” - Effectiveness of Occupation); § 11.2.2.2 (“Under the Authority” -
Suspension and Substitution of Governmental Authority).
29 1956 FM 27-10 (Change No. 1 1976) ¶352 (“b. Application of Law of Occupation. The rules set forth in this
chapter apply of their own force only to belligerently occupied areas, but they should, as a matter of policy, be
observed as far as possible in areas through which troops are passing and even on the battlefield.”).
30 See FM 27-10 (Change No. 1 1976) ¶354 (“Civil affairs administration is that form of administration established
in friendly territory whereby a foreign government pursuant to an agreement, expressed or implied, with the
government of the area concerned, may exercise certain authority normally the function of the local government.
Such administration is often established in areas which are freed from enemy occupation. It is normally required
when the government of the area concerned is unable or unwilling to assume full responsibility for its
administration. Territory subject to civil affairs administration is not considered to be occupied.”); Raymund T.
Yingling and Robert W. Ginnane, The Geneva Conventions of 1949, 46 AJIL 393, 417 (1953) (“While the Civilian
Convention contains no definition of ‘occupation,’ probably nothing could be added to the principle in Hague
Article 42 that ‘Territory is considered occupied when it is actually placed under the authority of the hostile army.
‘The convention will not apply in liberated territory of an allied country such as France in 1944 in relation to the
United States and the United Kingdom.”).
31 Refer to § 11.2.2.3 (“Of the Hostile Army” - Belligerent Occupation Applies to Enemy Territory).
32 For example, Directives and Agreements in Civil Affairs in France, Aug. 25, 1944, reprinted in U.S. ARMY,
JUDGE ADVOCATE GENERAL SCHOOL, CIVIL AFFAIRS MILITARY GOVERNMENT: SELECTED CASES AND MATERIALS
10 (1958) (“As a result of discussions between American, British, and French representatives, agreement has been
reached on the practical arrangements for civil affairs administration in Continental France.”).
33 1956 FM 27-10 (Change No. 1 1976) ¶354 (“If circumstances have precluded the conclusion of a civil affairs
agreement with the lawful government of allied territory recovered from enemy occupation or of other territory
liberated from the enemy, military government may be established in the area as a provisional and interim measure
(see par. 12b and c). A civil affairs agreement should, however, be concluded with the lawful government at the
earliest possible opportunity.”).
741
law of belligerent occupation may provide appropriate rules to apply by analogy, pending an
agreement with the lawful government.34
11.1.3.3 Occupation and Non-International Armed Conflict. The law of
belligerent occupation does not address non-international armed conflict as such because a
belligerent occupation presupposes that the Occupying Power is hostile in relation to the State
whose territory is being occupied.35 A State’s military forces controlling its own territory would
not be regarded as conducting an occupation; similarly, foreign forces conducting operations
with the consent of the territorial State would also not be regarded as conducting an
occupation.36
However, the law of belligerent occupation may be applicable to a non-international
armed conflict when a non-State party to the conflict has been recognized as a belligerent.37 In
addition, a non-international armed conflict could be regarded as taking place in the context of,
or alongside, an occupation.38
11.1.3.4 Occupation and Post-War Situations. Before the GC was adopted and
entered into force, the law of belligerent occupation was not applicable when a state of hostilities
had completely ceased.39 The general inapplicability of the law of belligerent occupation to
post-war situations may be viewed as resulting from the law of belligerent occupation
presupposing that a hostile relationship exists between the invading force’s State and the State of
34 1958 UK MANUAL ¶499 note 3(b) (“Where it is not possible to conclude ‘Civil Affairs’ agreement before the
liberation of allied territory, there may be an interregnum between invasion of such territory and the assumption of
authority on the part of the domestic civilian government. In such a situation the powers and restraints applicable to
an occupant by international law ought to apply as a minimum standard until such time as a ‘Civil Affairs’
agreement can be concluded.”).
35 Refer to § 17.1.3.1 (Nationality and Territoriality Exclusions in the Law of International Armed Conflict).
36 Refer to § 11.2.2.3 (“Of the Hostile Army” - Belligerent Occupation Applies to Enemy Territory).
37 Refer to § 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).
38 For example, Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq
Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 36 (“The
United States is currently involved in two armed conflicts that are relevant to our analysis: the armed conflict with
and occupation of Iraq, and the armed conflict with al Qaeda. In this Part we analyze how article 2 applies to each
conflict considered independently. This analysis is not conclusive as to how GC applies when the two conflicts
become intertwined, as they may when al Qaeda operatives carry on their armed conflict against the United States in
occupied Iraq. This latter issue is addressed in Part III, infra.”). Compare § 3.3.1.2 (Mixed Conflicts Between
Opposing States and Non-State Armed Groups).
39 For example, Forrest Hannaman, Chief of the Legal Service Division of the Office of the United States High
Commissioner for Germany, Letter to the Judge Advocate Division of EUCOM (Jan. 28, 1952), X WHITEMAN’S
DIGEST 595-96 (“The position of the United States that the Hague Regulations do not apply to the post-capitulation
period of the present occupation of German [was noted by] the Military Governor in a First Indorsement to the
Commander-in-Chief, European Command, dated January 7, 1948 (AG 386.3LD), [which] stated inter alia: ‘… it
appears that the French authorities are interested in the policy of the United States in regard to the treatment of
property owned or used by the Wehrmacht and in the applicability of the Annex to Hague Convention IV of 1907 to
that question … With respect to the applicability at the present time of the Annex ... the Legal Division of this
Headquarters has expressed the view ... that since the period of hostilities has ended, the provisions of Section III of
the Annex to Hague Convention IV of 1907 ‘do not literally apply to the present occupation of Germany’ …’”)
(amendments shown in Digest).
742
the occupied territory.40 For example, if the State of the occupied territory unconditionally
surrendered and any international armed conflict completely ended, the law of belligerent
occupation was not applicable.41
The GC, however, continues to apply in occupied territory until one year after the general
close of military operations, and the Occupying Power is bound, for the duration of the
occupation, to the extent that such State exercises the functions of government in such territory,
by the provisions of certain articles of the GC.42 Additionally, protected persons under the GC
who remain in the custody of the Occupying Power following the end of occupation retain that
protection until their release, repatriation, or re-establishment.43
In addition, it may be appropriate to adhere to the rules of belligerent occupation or to
apply those rules by analogy even if not applicable as a matter of law in post-conflict
situations.44 The rules of belligerent occupation may reflect fundamental safeguards applicable
to a wider range of situations.45
40 Refer to § 11.2.2.3 (“Of the Hostile Army” - Belligerent Occupation Applies to Enemy Territory).
41 For example, United States v. Altstoetter, et al., III TRIALS OF WAR CRIMINALS BEFORE THE NMT 960 (“It is this
fact of the complete disintegration of the government in Germany, followed by unconditional surrender and by
occupation of the territory, which explains and justifies the assumption and exercise of supreme governmental
power by the Allies. The same fact distinguishes the present occupation of Germany from the type of occupation
which occurs when, in the course of actual warfare, an invading army enters and occupies the territory of another
state, whose government is still in existence and is in receipt of international recognition, and whose armies, with
those of its allies, are still in the field. In the latter case the occupying power is subject to the limitations imposed
upon it by the Hague Convention and by the laws and customs of war. In the former case (the occupation of
Germany) the Allied Powers were not subject to those limitations. By reason of the complete breakdown of
government, industry, agriculture, and supply, they were under an imperative humanitarian duty of far wider scope
to reorganize government and industry and to foster local democratic governmental agencies throughout the
territory.”).
42 Refer to § 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory).
43 Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).
44 For example, Forrest Hannaman, Chief Legal Advice Division, Memorandum to Office of Economic Affairs -
Finance Division on Revenues from Laender-Owned Property (Mar. 30, 1951), reprinted in XX SELECTED
OPINIONS JANUARY 1, 1951 - APRIL 30, 1951 OF OFFICE OF THE UNITED STATES HIGH COMMISSIONER FOR
GERMANY, OFFICE OF GENERAL COUNSEL, FRANKFURT, GERMANY, 57-58 (“The Hague Regulations were designed
to define the powers of a belligerent occupant of enemy territory during, or shortly after, hostilities. As such, they
cannot be considered literally applicable to the situation in Germany today, and we cannot consider without
reflection that the occupying powers may exercise to their full extent powers which a belligerent occupant might
rightfully exercise under the Regulations. Insofar as there exists an accepted custom and practice of nations relevant
to our situation it is largely our own practice, since our present situation is without international precedent. In
determining any concrete problem of this nature it has consistently been the position of the legal advisors to
OMGUS and HICOG that whenever, in light of the actual problem and all of the relevant factors, the Hague
Regulations may be considered as expressing principles of international law which are pertinent to our situation,
those principles should be observed by us.”); Major G.B. Crook and Major W.G. Downey, Memorandum for the
Judge Advocate General, Present Applicability of Hague and Geneva Conventions in Germany, reprinted in Ernst
H. Feilchenfeld and Members of the Institute of World Polity, Status of Germany, 1 WORLD POLITY 182, 196 (1958)
(“We conclude, therefore, that: a. The authority of the Allied Control Council and of the United States zone
commander in occupied Germany is not limited by the provisions of Section III of the Regulations annexed to the
Hague Convention IV (I 907) and such Regulations have not been applicable to the occupation of Germany since 5
743
11.2 WHEN MILITARY OCCUPATION LAW APPLIES
The law of military occupation applies when a military occupation exists in fact.
Even if the requirements of the law of belligerent occupation do not apply as a matter of
law, general law of war principles and rules, such as those for the conduct of hostilities, continue
to apply.46
11.2.1
Military Occupation as a Fact. Military occupation is a question of fact.47
The
legal consequences arising from the fact of occupation (i.e., that this fact is the basis for both
rights and duties) illustrates how the law of war may be viewed as both permissive and restrictive
in nature.48
The fact of occupation is the basis for the Occupying Power to exercise authority over the
occupied territory.49 The fact of occupation, as a requirement for the exercise of authority over
the occupied territory, prevents a State from simply claiming the authorities of military
government over an enemy territory without actually controlling such territory.50
June I945. … The general rules expressed in the Hague Regulations will be considered as guiding principles unless
and until specific U.S. or Allied occupation policies require deviation.”).
45 1956 FM 27-10 (Change No. 1 1976) ¶10 (“However, certain designated provisions of the Geneva Conventions of
1949 (see GC, art. 6; par 249 herein) continue to be operative, notwithstanding the termination of any antecedent
hostilities, during the continuance of a military occupation. Insofar as the unwritten law of war and the Hague
Regulations extend certain fundamental safeguards to the persons and property of the populations of occupied
territory, their protection continues until the termination of any occupation having its origin in the military
supremacy of the occupant, notwithstanding the fact the Geneva Convention relative to the Protection of Civilian
Persons may have ceased to be applicable.”).
46 Eritrea-Ethiopia Claims Commission, Partial Award - Western Front, Aerial Bombardment and Related Claims,
Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶27 (Dec. 19, 2005) (“The Commission agrees that the Ethiopian
military presence was more transitory in most towns and villages on the Western Front than it was on the Central
Front, where the Commission found Ethiopia to be an occupying power. The Commission also recognizes that not
all of the obligations of Section III of Part III of Geneva Convention IV (the section that deals with occupied
territories) can reasonably be applied to an armed force anticipating combat and present in an area for only a few
days. Nevertheless, a State is obligated by the remainder of that Convention and by customary international
humanitarian law to take appropriate measures to protect enemy civilians and civilian property present within areas
under the control of its armed forces. Even in areas where combat is occurring, civilians and civilian objects cannot
lawfully be made objects of attack.”).
47 1956 FM 27-10 (Change No. 1 1976) ¶355 (“Military occupation is a question of fact.”).
48 Refer to § 1.3.3 (Restrictive and Permissive Character of the Law of War).
49 See, e.g., WINTHROP, MILITARY LAW & PRECEDENTS 799 (“The authority for military government is the fact of
occupation. Not a mere temporary occupation of enemy’s country on the march, but a settled and established one.
Mere invasion, the presence of the hostile army in the country, is not sufficient. There must be a full possession, a
firm holding, a government de facto.”); MacLeod v. United States, 229 U.S. 416, 425 (1913) (“There has been
considerable discussion in the cases and in works of authoritative writers upon the subject of what constitutes an
occupation which will give the right to exercise governmental authority. Such occupation is not merely invasion,
but is invasion plus possession of the enemy’s country for the purpose of holding it temporarily at least.”); United
States v. Rice, 17 U.S. 246, 254 (1819) (Story, J.) (“By the conquest and military occupation of Castine, the enemy
acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place.”).
50 Compare § 13.10.2.3 (Effectiveness of the Blockade).
744
The fact of occupation also imposes certain duties on the Occupying Power with respect
to occupied territory.51 The fact of occupation, as a requirement for triggering the duties of an
Occupying Power, means that a State that does not, in fact, occupy an area, does not incur the
obligations of an Occupying Power.
Once an occupation exists in fact, regardless of whether the invasion was lawful or
unlawful under jus ad bellum, the rights and duties of the Occupying Power and the population
in relation to each other apply.52 This application of the law of belligerent occupation is an
example of how jus in bello rules and jus ad bellum rules generally operate independently of one
another.53
11.2.2 Standard for Determining When Territory Is Considered Occupied. Territory is
considered occupied when it is actually placed under the authority of the hostile forces.54
This standard for when the law of belligerent occupation applies is reflected in Article 42
of the Hague IV Regulations and is regarded as customary international law.55
11.2.2.1 “Actually Placed” - Effectiveness of Occupation. Military occupation
must be actual and effective; that is, the organized resistance must have been overcome, and the
Occupying Power must have taken measures to establish its authority.56
It is sufficient that the occupying force can, within a reasonable time, send detachments
of forces to enforce its authority within the occupied district. Military occupation does not
51 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).
52 See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1247
(“At the outset, we desire to point out that international law makes no distinction between a lawful and an unlawful
occupant in dealing with the respective duties of occupant and population in occupied territory. There is no
reciprocal connection between the manner of the military occupation of territory and the rights and duties of the
occupant and population to each other after the relationship has in fact been established. Whether the invasion was
lawful or criminal is not an important factor in the consideration of this subject.”).
53 Refer to § 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).
54 HAGUE IV REG. art. 42 (“Territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority has been established and can be
exercised.”).
55 See, e.g., Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under
the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 37 footnote 1
(“The Hague Regulations do not apply to the United States’ conflict with and occupation of Iraq as a matter of
treaty law because Iraq is not a party to the Hague Convention. … But as the citations in the text make clear, article
42(1) of the Hague Regulations, which provides that occupation begins ‘when [territory] is actually placed under the
authority of the hostile army,’ reflects customary international law.”); Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. 168, 229 (¶172) (“[U]nder customary
international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied
when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory
where such authority has been established and can be exercised … .”).
56 1956 FM 27-10 (Change No. 1 1976) ¶356 (“It follows from the definition that belligerent occupation must be
both actual and effective, that is, the organized resistance must have been overcome and the force in possession must
have taken measures to establish its authority.”).
745
require the presence of military forces in every populated area, although the occupying force
must, inter alia, control the most important places.57
The type of forces used to maintain the authority of the Occupying Power is not material.
For example, the occupation might be maintained by permanently based units or mobile forces,
either of which would be able to send detachments of forces to enforce the authority of the
Occupying Power within the occupied district.58 However, air superiority alone would not
constitute an effective occupation.
Similarly, as long as the occupation is effective, there is no precise number of forces that
are considered necessary to constitute an effective occupation. The number of forces necessary
to maintain effective occupation will depend on various considerations, such as the disposition of
the inhabitants, the number and density of the population, the nature of the terrain, and similar
factors.59
An occupation may be effective despite the existence of areas in the enemy State that are
temporarily controlled by enemy forces or pockets of resistance. For example, the fact that a
defended location (such as a city or town) still controlled by enemy forces exists within an area
declared occupied by the Occupying Power does not render the occupation of the remainder of
the area invalid, provided that continued resistance in such place or defended zone does not
render the occupier unable to exercise control over the remainder of the occupied territory.60
Similarly, an occupation may continue to be effective despite intermittent insurgent attacks or
temporary seizures of territory by resistance forces.61
57 Keely v. Sanders, 99 U.S. 441, 447 (1878) (“No conquering army occupies the entire territory conquered. Its
authority is established when it occupies and holds securely the most important places, and when there is no
opposing governmental authority within the territory. The inability of any other power to establish and maintain
governmental authority therein is the test.”).
58 1956 FM 27-10 (Change No. 1 1976) ¶356 (“It is sufficient that the occupying force can, within a reasonable time,
send detachments of troops to make its authority felt within the occupied district. It is immaterial whether the
authority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, so
long as the occupation is effective.”).
59 1956 FM 27-10 (Change No. 1 1976) ¶356 (“The number of troops necessary to maintain effective occupation
will depend on various considerations such as the disposition of the inhabitants, the number and density of the
population, the nature of the terrain, and similar factors. The mere existence of a fort or defended area within the
occupied district, provided the fort or defended area is under attack, does not render the occupation of the remainder
of the district ineffective. Similarly, the mere existence of local resistance groups does not render the occupation
ineffective.”).
60 1958 UK MANUAL ¶502 (“The fact that there is a defended place or zone still in possession of the national forces
within an occupied district does not make the occupation of the remainder invalid, provided that such place or
defended zone is surrounded and effectively cut off from the rest of the occupied district.”).
61 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1243 (“It is
clear that the German armed forces were able to maintain control of Greece and Yugoslavia until they evacuated
them in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various
times, it is established that the Germans could at any time they desired assume physical control of any part of the
country. The control of the resistance forces was temporary only and not such as would deprive the German armed
forces of its status of an occupant.”).
746
11.2.2.2 “Under the Authority” - Suspension and Substitution of Governmental
Authority. Occupation also requires the suspension of the territorial State’s authority and the
substitution of the Occupying Power’s authority for the territorial State’s authority.62
The territorial State must be rendered incapable of publicly exercising its authority in the
territory, and the Occupying Power must substitute its authority for that of the territorial State.63
Invading forces in possession of the territory must have taken measures to establish their
authority.64 For example, such measures may include establishing its own governmental
authority for that area and making regulations for the conduct of temporary government.65 The
suspension and substitution of authority may take place with local authorities continuing to
administer territory subject to the paramount authority of the Occupying Power.66 On the other
hand, routine measures necessary to provide for unit security (e.g., warning private persons not
to threaten or interfere with military operations) would not necessarily constitute measures to
establish authority over enemy territory.
62 LIEBER CODE art. 3 (“Martial Law in a hostile country consists in the suspension, by the occupying military
authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or
territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as
far as military necessity requires this suspension, substitution, or dictation.”).
63 1956 FM 27-10 (Change No. 1 1976) ¶355 (“Military occupation is a question of fact. It presupposes a hostile
invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of
publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the
legitimate government in the territory invaded.”). See also Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. 165, 230 (¶¶173-74) (“In order to reach a
conclusion as to whether a State, the military forces of which are present on the territory of another State as a result
of an intervention, is an ‘occupying Power’ in the meaning of the term as understood in jus in bello, the Court must
examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and
exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself
that the Ugandan armed forces in the DRC were not only stationed in particular locations, but also that they had
substituted their own authority for that of the Congolese Government … . [T]he territorial limits of any zone of
occupation by Uganda in the DRC cannot be determined by simply drawing a line connecting the geographical
locations where Ugandan troops were present as has been done on the sketch-map presented by the DRC (see
paragraphs 55 and 73 above).”).
64 GREENSPAN, THE MODERN LAW OF LAND WARFARE 213-14 (“An occupant sets up some form of administration
in the territory, an invader merely passing through it does not.”).
65 For example, MacLeod v. United States, 229 U.S. 416, 424-25 (1913) (“When the Spanish fleet was destroyed at
Manila, May 1, 1898, it became apparent that the Government of the United States might be required to take the
necessary steps to make provision for the government and control of such part of the Philippines as might come into
the military occupation of the forces of the United States. The right to thus occupy an enemy’s country and
temporarily provide for its government has been recognized by previous action of the executive authority and
sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its
own authority and make rules and regulations for the conduct of temporary government, and to that end may collect
taxes and duties to support the military authority and carry on operations incident to the occupation. Such was the
course of the Government with respect to the territory acquired by conquest and afterwards ceded by the Mexican
Government to the United States.”).
66 Refer to § 11.8.2 (Continued Performance of Duties by Civil Servants and Other Officials of Local Governments).
747
The substitution of authority by the Occupying Power may be shown by a proclamation
of occupation, although such a proclamation is not required.67
11.2.2.3 “Of the Hostile Army” - Belligerent Occupation Applies to Enemy
Territory. Occupation occurs when territory is actually placed under the authority of the hostile
army. Thus, the existence of an occupation presupposes a hostile relationship between the
invading force’s State and the State of the occupied territory, although the occupation need not
be met with armed resistance.68
For example, the law of belligerent occupation would not apply to the use of military
forces to control a State’s own territory, such as in cases of domestic emergency, insurrection, or
non-international armed conflict.69
Similarly, the law of belligerent occupation would not apply to the liberation of friendly
territory that was previously occupied by the enemy.70
The requirement of a hostile relationship between the invading force’s State and the State
of the occupied territory also prevents the law of belligerent occupation from applying to post-
conflict situations (except for certain provisions of the GC).71
11.2.3 Scope of Occupied Territory. The occupation extends only to the territory where
such authority has been established and can be exercised.72
For example, a State may remain in control of part of its territory while the remainder of
its territory is under occupation. The 1949 Geneva Conventions apply in cases of partial or total
occupation of a State.73
The end of occupation in one part of occupied territory does not end the occupation in
other parts of the occupied territory where the Occupying Power maintains its authority.
11.2.4 Proclamation of Occupation. Due to the special relations established between the
civilian population of the occupied territory and the Occupying Power, the fact of military
occupation and the territory over which it extends should be made known to the citizens of the
occupied territory and to other States.
67 Refer to § 11.2.4 (Proclamation of Occupation).
68 GWS art. 2 (“The Convention shall also apply to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance.”); GWS-SEA art. 2 (same); GPW art.
2 (same); GC art. 2 (same).
69 Refer to § 11.1.3.3 (Occupation and Non-International Armed Conflict).
70 Refer to § 11.1.3.2 (Liberation of Friendly Territory).
71 Refer to § 11.1.3.4 (Occupation and Post-War Situations).
72 HAGUE IV REG. art. 42 (“Territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority has been established and can be
exercised.”).
73 Refer to § 11.1.2.3 (Occupation and the 1949 Geneva Conventions).
748
However, there is no specific legal requirement that the Occupying Power issue a
proclamation of military occupation.74
The question of whether territory is occupied does not depend upon the issuance of any
particular proclamation or other instrument. Territory may be occupied even though no
proclamation of occupation has been issued. Conversely, the issuance of proclamation of
occupation does not empower a State with the rights of an Occupying Power if it does not
control such territory in fact.
A proclamation may help fix the date of the beginning of the occupation.75 The
proclamation may also advise inhabitants of occupied territory of the rules with which they must
comply.76 In particular, the proclamation may be used to advise inhabitants of changes to law,
including penal law.77
74 1956 FM 27-10 (Change No. 1 1976) ¶357 (“In a strict legal sense no proclamation of military occupation is
necessary. However, on account of the special relations established between the inhabitants of the occupied territory
and the occupant by virtue of the presence of occupying forces, the fact of military occupation, with the extent of
territory affected, should be made known. The practice of the United States is to make this fact known by
proclamation.”); 1914 RULES OF LAND WARFARE ¶292 (“In a strict legal sense no proclamation of military
occupation is necessary. On account of the special relations established between the inhabitants of the occupied
territory and the occupant, by virtue of the presence of the invading force, the fact of military occupation, with the
extent of terrritorry [sic] affected by the same, should be made known. The practice in this country is to make this
fact known by proclamation.”); LIEBER CODE art. 1 (“A place, district, or country occupied by an enemy stands, in
consequence of the occupation, under the Martial Law of the invading or occupying army, whether any
proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law
is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army
proclaims its Martial Law.”).
75 For example, Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq
Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 37
(“Applying this standard, the United States became an occupying power no later than April 16, 2003, the date on
which General Tommy Franks announced the creation of the ‘Coalition Provisional Authority to exercise powers of
government temporarily, and as necessary, especially to provide security, to allow the delivery of humanitarian aid
and to eliminate weapons of mass destruction.’ See Tommy R. Franks, Freedom Message to the Iraqi People (Apr.
16, 2003)”); The Venice, 69 U.S. 258, 276 (1865) (“The transports conveying the troops under the command of
Major-General Butler, commanding the Department of the Gulf, arrived on the 1st of May, and the actual
occupation of the city was begun. There was no armed resistance, but abundant manifestations of hostile spirit and
temper both by the people and the authorities. The landing of the troops was completed on the 2d of May, and on
the 6th a proclamation of General Butler, which had been prepared and dated on the 1st, and the next day printed by
some soldiers, in an office seized for the purpose, was published in the newspapers of the city. Some copies of the
proclamation had been previously distributed to individuals, but it was not made known to the population generally
until thus published. There was no hostile demonstration, and no disturbance afterwards; and we think that the
military occupation of the city of New Orleans may be considered as substantially complete from the date of this
publication; and that all the rights and obligations resulting from such occupation, or from the terms of the
proclamation, may be properly regarded as existing from that time. This proclamation declared the city to be under
martial law, and announced the principles by which the commanding general would be guided in its
administration.”).
76 For example, 1958 UK MANUAL ¶504 note 1 (“The practice in this matter in past wars appears to have been
variable. Frequently the inhabitants were only warned to behave peaceably, not to communicate with the enemy,
and to comply with requisitions; as for instance when the British troops entered France in 1813 and 1815. In 1870,
in France, the Germans generally, but not always, proclaimed military jurisdiction directly[;] they took possession of
749
The general practice of the United States has been to make the fact of occupation known
by proclamation or similar notice.78 In addition to giving notice to the inhabitants of occupied
territory, notice may be given to other governments.79 In some cases, the U.N. Security Council
has recognized the fact of occupation.80
11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONS
The status of belligerent occupation ends when the conditions for its application are no
longer met. Certain GC obligations with respect to occupied territory continue for the duration
of the occupation after the general close of military operations.
11.3.1 End of Occupation. Belligerent occupation ceases when the conditions for its
application are no longer met.81 In particular, as discussed below, the status of belligerent
occupation ceases when the invader no longer factually governs the occupied territory or when a
hostile relationship no longer exists between the State of the occupied territory and the
Occupying Power.82
Belligerent occupation ends when the Occupying Power no longer has effectively placed
the occupied territory under its control.83 For example, an uprising by the local population may
a locality, by posting a notice which gave a list of offences against the troops for which the penalty of death would
be inflicted.”).
77 Refer to § 11.9.3 (Procedural Obligation - Notification to the Population of Changes in Law); § 11.11.2.1
(Publication of Penal Provisions Before Coming Into Force).
78 For example, Coalition Provisional Authority Regulation No. 1, §1(1) (May 16, 2003) (“The CPA shall exercise
powers of government temporarily in order to provide for the effective administration of Iraq during the period of
transitional administration … .”).
79 For example, John D. Negroponte & Jeremy Greenstock, Letter Dated 8 May 2003 from the Permanent
Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to
the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/538 (“the United States,
the United Kingdom, and Coalition partners, acting under existing command and control arrangements through the
Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of
Reconstruction and Humanitarian Assistance, to exercise the powers of government temporarily, and, as necessary,
especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass
destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition
Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq … .”).
80 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, 2 (May 22, 2003) (“Noting the
letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom
of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the
specific authorities, responsibilities, and obligations under applicable international law of these states as occupying
powers under unified command (the ‘Authority’),”); U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc.
S/RES/661 (1990) (Aug. 6, 1990) (“Determined to bring the invasion and occupation of Kuwait by Iraq to an end
and to restore the sovereignty, independence and territorial integrity of Kuwait,”).
81 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).
82 WINTHROP, MILITARY LAW & PRECEDENTS 801 (“The status of military government continues from the inception
of the actual occupation till the invader is expelled by force of arms, or himself abandons the conquest, or till, under
a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the
prevailing belligerent.”).
83 Refer to § 11.2.2.1 (“Actually Placed” - Effectiveness of Occupation).
750
prevent the Occupying Power from actually enforcing its authority over occupied territory.
Similarly, the Occupying Power’s expulsion or complete withdrawal from the territory would
also suffice because the former Occupying Power generally would not be able to control
sufficiently the occupied territory.
Belligerent occupation also may end when a hostile relationship no longer exists between
the Occupying Power and the State of the occupied territory (although, as discussed in the
following subsection, certain GC obligations may continue to apply).84 For example, if a new,
independent government of the previously occupied territory assumes control of the territory and
consents to the presence of the previously occupying forces, then such a situation would no
longer be considered a belligerent occupation. Similarly, if a peace treaty legitimately transfers
the territory to the sovereignty of the Occupying Power, then the Occupying Power would no
longer be characterized as such. However, an Occupying Power is not permitted, under the law
of belligerent occupation, to annex occupied territory.85
11.3.2 Duration of GC Obligations in the Case of Occupied Territory. In the home
territory of parties to the conflict, the application of the GC shall cease on the general close of
military operations.86
In the case of occupied territory, the application of the GC shall cease one year after the
general close of military operations; however, the Occupying Power shall be bound, for the
duration of the occupation, to the extent that such State exercises the functions of government in
such territory, by the provisions of the following Articles of the GC:
•
1 through 12 (general provisions and common articles, e.g., the Protecting Power
continues to function, and the derogation for security reasons continues to apply);
•
27, 29 through 34 (humane treatment);
•
47 (preserves rights as against change by annexation or arrangement with the local
authorities so long as occupation lasts);
•
49 (transfers, evacuation, and deportation);
•
51, 52 (prohibitions against certain compulsory service and protection of workers);
•
53 (respect for property);
•
59, 61 through 63 (facilitating relief programs);
•
64 through 77 (criminal proceedings); and
84 Refer to § 11.2.2.3 (“Of the Hostile Army” - Belligerent Occupation Applies to Enemy Territory).
85 Refer to § 11.4.2 (Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty
Over Occupied Territory).
86 Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).
751
•
143 (access by Protecting Powers and the ICRC).87
The one-year time limit for the cessation of the application of the GC (apart from the
provisions that continue to apply to the extent that the Occupying Power exercises the functions
of government in occupied territory) was proposed to account for situations like those of
Germany and Japan after World War II.88 AP I provides that the 1949 Geneva Conventions and
AP I shall cease to apply, in the case of occupied territories, on the termination of the
occupation;89 coalition partners that are Occupying Powers and Parties to AP I would be bound
by this rule.
In any case, individuals entitled to GC protection who remain in the custody of the
Occupying Power following the end of occupation retain that protection until their release,
repatriation, or re-establishment.90 In addition, it may be appropriate following the end of
occupation to continue to apply by analogy certain rules from the law of belligerent occupation,
even if such rules do not apply as a matter of law.91
11.4 LEGAL POSITION OF THE OCCUPYING POWER
Military occupation of enemy territory involves a complicated, trilateral set of legal
relations between the Occupying Power, the temporarily ousted sovereign authority, and the
87 GC art. 6 (“In the case of occupied territory, the application of the present Convention shall cease one year after
the general close of military operations; however, the Occupying Power shall be bound, for the duration of the
occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions
of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.”).
88 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 623 (“Mr. CLATTENBURG (United
States of America) said that his Delegation would propose an amendment to Article 4 to provide that the Civilians
Convention should cease to apply not earlier than one year after the termination of hostilities. It would be noted that
the Convention did not define the terms ‘occupied territory’ or ‘military occupation’. It was the view of the United
States Delegation that the obligations imposed by the Convention on an Occupying Power should be applicable to
the period of hostilities and to the period of disorganization following on the hostilities; these obligations would vary
according to the nature and duration of the occupation. Experience had shown that an Occupying Power did, in fact,
exercise the majority of the governmental functions in occupied territory. A prolonged military occupation was,
however, also characterized by a progressive return of governmental responsibility to local authorities. The
Occupying Power should be bound by the obligations of the Convention only during such time as the institutions of
the occupied territory were unable to provide for the needs of the inhabitants. The ultimate solution of such
problems as revictualling, sanitation and war damage was not the responsibility of the Occupying Power. He quoted
the case of the Allied occupation of Germany and Japan to show that the responsibility of the Occupying Powers for
the welfare of the local populations was far less at present than during the period immediately following
hostilities.”).
89 AP I art. 3 (“Without prejudice to the provisions which are applicable at all times: (a) The Conventions and this
Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol; (b) The application
of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of
military operations and, in the case of occupied territories, on the termination of the occupation, except, in either
circumstance, for those persons whose final release, repatriation or reestablishment takes place thereafter. These
persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final
release, repatriation or re-establishment.”).
90 Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).
91 Refer to § 11.1.3.4 (Occupation and Post-War Situations).
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inhabitants of occupied territory.92 The fact of occupation gives the Occupying Power the right
to govern enemy territory temporarily, but does not transfer sovereignty over occupied territory
to the Occupying Power.
11.4.1 Right of the Occupying Power to Govern the Enemy Territory Temporarily. The
right to govern the territory of the enemy during its military occupation is one of the incidents of
war.93 By the fact of occupation (i.e., the Occupying Power’s established power over occupied
territory), the Occupying Power is conferred the authority to exercise some of the rights of
sovereignty.94 The exercise of these sovereign rights also results from the necessity of
maintaining law and order, indispensable both to the inhabitants and to the occupying force, and
the failure or inability of the legitimate government to exercise its functions, or the undesirability
of allowing it to do so.95
11.4.2 Limitations on the Power of the Occupying Power Stemming From Its Lack of
Sovereignty Over Occupied Territory. Belligerent occupation in a foreign war, being based upon
the possession of enemy territory, necessarily implies that the sovereignty of the occupied
territory is not vested in the Occupying Power.96 Occupation is essentially provisional.97
92 JULIUS STONE, LEGAL CONTROLS ON INTERNATIONAL CONFLICT 694 (1954) (“Whether belligerent occupation has
been established depends not merely on the will of the belligerent, but whether his actual control satisfies the
standards of range and stability laid down by international law. If it does not, he is a mere invader enjoying a
comparatively narrow legal authority. If it does, international law attributes to him legal powers which merely as a
belligerent he does not have, touching almost all aspects of the government of the territory and the lives of its
inhabitants. Since, moreover, the ousted sovereign still retains all the residue of legal authority not attributed to the
Occupant, it is apparent that belligerent occupation involves at its core a complicated trilateral set of legal relations
between the Occupant, the temporarily ousted sovereign and the inhabitants.”).
93 Coleman v. Tennessee, 97 U.S. 509, 517 (1879) (“The doctrine of international law on the effect of military
occupation of enemy's territory upon its former laws is well established. Though the late war was not between
independent nations, but between different portions of the same nation, yet having taken the proportions of a
territorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine
must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the
incidents of war, being a consequence of its acquisition; and the character and form of the government to be
established depend entirely upon the laws of the conquering State or the orders of its military commander.”).
94 1956 FM 27-10 (Change No. 1 1976) ¶358 (“Being an incident of war, military occupation confers upon the
invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to
the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these
rights results from the established power of the occupant and from the necessity of maintaining law and order,
indispensable both to the inhabitants and to the occupying force.”).
95 1956 FM 27-10 (Change No. 1 1976) ¶362 (“Military government is the form of administration by which an
occupying power exercises governmental authority over occupied territory. The necessity for such government
arises from the failure or inability of the legitimate government to exercise its functions on account of the military
occupation, or the undesirability of allowing it to do so.”).
96 1956 FM 27-10 (Change No. 1 1976) ¶353 (“Belligerent occupation in a foreign war, being based upon the
possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the
occupying power. Occupation is essentially provisional.”).
97 See, e.g., VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 31 (“The consensus of the opinions of writers on
international law is that the legitimate government of the territory retains its sovereignty but that the latter is
suspended during the period of belligerent occupation.”); EYAL BENVENISTI, THE INTERNATIONAL LAW OF
OCCUPATION 6 (2004) (“The power exercising effective control within another’s sovereign territory has only
753
Because sovereignty is not vested in the Occupying Power, the fact of military
occupation does not authorize the Occupying Power to take certain actions. For example, the
Occupying Power is not authorized by the fact of belligerent occupation to annex occupied
territory or to create a new State.98 In addition, the Occupying Power may not compel the
inhabitants of occupied territory to become its nationals or otherwise to swear allegiance to it.99
Similarly, in view of the provisional nature of belligerent occupation, the authority of the
Occupying Power under occupation law has been interpreted as being subject to limitations on
the ability of the Occupying Power to alter institutions of government permanently or change the
constitution of a country.100
11.5 DUTY OF THE OCCUPYING POWER TO ENSURE PUBLIC ORDER AND SAFETY
The authority of the legitimate power having in fact passed into the hands of the
Occupying Power, the latter shall take all the measures in its power to restore, and ensure, as far
temporary managerial powers, for the period until a peaceful solution is reached. During that limited period, the
occupant administers the territory on behalf of the sovereign. Thus the occupant’s status is conceived to be that of a
trustee.”).
98 1956 FM 27-10 (Change No. 1 1976) ¶358 (“It is therefore unlawful for a belligerent occupant to annex occupied
territory or to create a new State therein while hostilities are still in progress.”). Refer to § 11.6.3 (Occupying
Power’s Duty to Respect the Rights of Protected Persons Secured by the GC).
99 Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the
Hostile State).
100 John B. Bellinger, III, Legal Adviser, Department of State, United Nations Security Council Resolutions and the
Application of International Humanitarian Law, Human Rights and Refugee Law, Sept. 9, 2005, 2005 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 958-59 (“Some commentators take the position that occupation
law establishes limitations on the ability of the occupying power to alter institutions of government permanently or
change the constitution of a country.”). See also 2004 UK MANUAL ¶11.25.1 (“Since the occupying power has a
duty to look after the welfare of the inhabitants, regulations, for example, fixing prices and securing the equitable
distribution of food and other commodities, are permissible. The occupying power should make no more changes to
the law than are absolutely necessary, particularly where the occupied territory already has an adequate legal
system.”); 2001 CANADIAN MANUAL ¶1205(1) (“During occupation by the enemy, the sovereignty of the legitimate
government continues to exist but it is temporarily latent. The powers of the occupant are of a provisional nature
and it should only take measures, which are necessary for the purposes of the armed conflict, the maintenance of
order and safety and the proper administration of the occupied territory. Generally speaking, the occupant is not
entitled to alter the existing form of government, to upset the constitution and domestic laws of the occupied
territory, or to set aside the rights of the inhabitants.”); JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL
CONFLICT 698 (1954) (“The limits on the legislative and regulatory power are as vague as the authority is general.
The Occupant’s authority is ‘military authority’. Clearly this is not full sovereignty, but equally clearly it extends
under the regulations to civil matters. His authority, of course, is limited like all his other powers to the occupied
territory, under Article 42, paragraph 2; and by Article 43 the Occupant must respect the laws in force unless
‘absolutely prevented’. But this last limitation has never been taken literally; and unless it is so taken, the
boundaries of the Occupant’s legislative power are still to be drawn. The most widely approved line of distinction is
that the Occupant, in view of his merely provisional position, cannot make permanent changes in regard to
fundamental institutions, for instance, change a republic into a monarchy. It becomes, however, increasingly
difficult to say with confidence what is a fundamental institution.”).
754
as possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country.101 This principle has been recognized as customary international law.102
The Occupying Power has a general duty to maintain public order and to provide for the
preservation of rights of the inhabitants, including rights to their private property.103
11.5.1 Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and
Safety. The Occupying Power’s duty to take all the measures in its power to restore and ensure,
as far as possible, public order and safety also provides it authority take such actions. For
example, the Occupying Power may enact provisions to maintain the orderly government of the
territory.104
11.5.2 Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country.
The duty to respect, unless absolutely prevented, the laws in force in the country prohibits the
Occupying Power from arbitrarily exercising its authority to suspend, repeal, or change the
municipal law applicable to occupied territory.105
101 HAGUE IV REG. art. 43 (“The authority of the legitimate power having in fact passed into the hands of the
occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in the country.”).
102 Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily, Sept. 23, 1943,
reprinted in Occupation Currency Transactions: Hearings Before the Committees on Appropriations Armed
Services and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 75 (Jun. 17-18, 1947) (“The
Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect
during the occupation, subject to change by the military authorities within the limitations of the Convention. Article
43 provides: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognized
international law prior to that time.”).
103 Aboitiz & Co. v. Price, 99 F. Supp. 602, 610 (D. Utah 1951) (“[I]international law has recognized the right of the
protection of [the Occupying Power’s] military interests and the exercise of police powers. However, such law also
imposes upon the occupant the duty to maintain public order and to provide for the preservation of the rights of the
inhabitants. The emphasis is upon public order and safety, and the welfare of the inhabitants.”). See also Ochoa v.
Hernandez y Morales, 230 U.S. 139, 159 (1913) (“The protocol of August 12, 1898 (30 Stat. 1742), the purport of
which has already been given, left our Government, by its military forces, in the occupation and control of Porto
Rico as a colony of Spain, and bound by the principles of international law to do whatever was necessary to secure
public safety, social order, and the guaranties of private property.”).
104 Refer to § 11.9.2 (Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal Law
Applicable to Occupied Territory).
105 See GC COMMENTARY 335-36 (“Article 64 expresses, in a more precise and detailed form, the terms of Article 43
of the Hague Regulations, which lays down that the Occupying Power is to respect the laws in force in the country
‘unless absolutely prevented’. … The principle that the penal laws in force in the occupied territory must be
maintained is subject to two reservations. The first relates to the security of the Occupying Power, which must
obviously be permitted to cancel provisions such as those concerning recruiting or urging the population to resist the
enemy. The second reservation is in the interests of the population and makes it possible to abrogate any
discriminatory measures incompatible with humane requirements. … These two exceptions are of a strictly
limitative nature. The occupation authorities cannot abrogate or suspend the penal laws for any other reason—and
not, in particular, merely to make it accord with their own legal conceptions.”).
755
The duty to respect, unless absolutely prevented, the laws in force in the country has been
interpreted not to apply to local administrative laws, such as regulations, executive orders,
ordinances, and decrees.106
11.6 PROTECTION OF THE POPULATION OF AN OCCUPIED TERRITORY
Under the law of belligerent occupation, the Occupying Power has certain duties with
respect to the population of an occupied territory, including protected persons under the GC.
11.6.1 General Protections, Including Humane Treatment, of the Population of an
Occupied Territory. The population of an occupied territory, like other protected persons under
the GC, are entitled, in all circumstances, to respect for their persons, their honor, their family
rights, their religious convictions and practices, and their manners and customs.107 They shall at
all times be humanely treated, and shall be protected especially against all acts of violence or
threats of violence, and against insults and public curiosity.
Other provisions for the humane treatment of protected persons set forth in Articles 27
through 34 of the GC apply to the population of an occupied territory. For example, women
must be especially protected against any attack on their honor, in particular against rape,
enforced prostitution, or any form of indecent assault.108 Reprisals against protected persons and
their property are prohibited.109 The taking of hostages is prohibited.110
In addition, protected persons in occupied territory shall have every facility for making
application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion
and Sun) Society of the country where they may be, as well as to any organization that might
assist them.111
11.6.2 Overview of Additional Protections for the Population That Are Specific to
Occupation. There are a number of protections for the population of occupied territory that are
specific to occupation. For example, specific provision exists for the protection of children in
106 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 99 (“In sharp contrast to the ‘restricted’ view concerning
civil laws, the occupant is generally conceded very extensive powers to change, alter, or suspend the ordinances and
decrees (as distinct from laws) of the legitimate sovereign of an occupied territory. It is held that administrative
regulations and executive orders are quite sharply distinct from the constitutional and statute law of a country and
that they do not constitute as important or vital a part of the latter’s legal structure. Hence the occupant is held to
have the power to interfere and to enact such regulations and ordinances as are deemed fitting and proper in his
interests and in the interests of his armed forces.”).
107 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons). See also HAGUE IV REG.
art. 46 (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and
practice, must be respected.”).
108 Refer to § 10.5.1.2 (Protection for Women Against Rape or Other Indecent Assault).
109 Refer to § 10.5.4 (Reprisals Against Protected Persons and Their Property).
110 Refer to § 10.5.1.4 (Taking of Hostages).
111 Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as the
ICRC).
756
occupied territory.112 Specific constraints exist on the authority of the Occupying Power to
punish protected persons, direct their movement, or compel them to perform labor.113 Provision
also is made with respect to: (1) food and medical supplies of the population; (2) public health
and hygiene; (3) spiritual assistance; and (4) relief efforts and consignments.114
The following prohibitions also apply with respect to the inhabitants of occupied
territory:
11.6.2.1 Prohibition on Compelling Inhabitants of Occupied Territory to Swear
Allegiance to the Hostile State. It is forbidden to compel the inhabitants of occupied territory to
swear allegiance to the hostile State.115
11.6.2.2 Prohibition Against General Penalties in Occupied Territory. No
general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the
acts of individuals for which they cannot be regarded as jointly and severally responsible.116
Such penalties are prohibited, even if authorized under the law of the occupied territory.
Collective penalties are prohibited as a general matter.117
11.6.3 Occupying Power’s Duty to Respect the Rights of Protected Persons Secured by
the GC. The Occupying Power has certain obligations to respect the rights of protected persons
secured by the GC.
Protected persons who are in occupied territory shall not be deprived, in any case or in
any manner whatsoever, of the benefits of the GC by any change introduced, as the result of the
occupation of a territory, into the institutions or government of the occupied territory, nor by any
agreement concluded between the authorities of the occupied territories and the Occupying
Power, nor by any annexation by the latter of the whole or part of the occupied territory.118 For
112 Refer to § 11.13 (Protection of Children in Occupied Territory).
113 Refer to § 11.11 (Criminal Law in Occupied Territory); 11.12 (Movement of Persons in Occupied Territory);
11.20.1 (Types of Labor That May Not Be Compelled).
114 Refer to § 11.14 (Food and Medical Supplies for the Civilian Population); § 11.15 (Public Health and Hygiene);
§ 11.16 (Spiritual Assistance); § 11.17 (Relief Efforts and Consignments).
115 HAGUE IV REG. art. 45 (“It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the
hostile Power.”); 1899 HAGUE II REG. art. 45 (“Any pressure on the population of occupied territory to take the oath
to the hostile Power is prohibited.”).
116 HAGUE IV REG. art. 50 (“No general penalty, pecuniary or otherwise, shall be inflicted upon the population on
account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”).
117 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).
118 GC art. 47 (“Protected persons who are in occupied territory shall not be deprived, in any case or in any manner
whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a
territory, into the institutions or government of the said territory, nor by any agreement concluded between the
authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or
part of the occupied territory.”).
757
example, an Occupying Power may not purport to annex occupied territory in order to avoid its
responsibilities as an Occupying Power.119
The Occupying Power may not enter into any special agreements that would adversely
affect the situation of protected persons, as defined by the GC, nor restrict the rights that the GC
confers upon them.120
The Occupying Power may also not evade its responsibilities through the purported
renunciation by protected persons of the rights secured to them by the GC and by any special
agreements referred to in Article 7 of the GC.121
In certain cases, a protected person’s rights of communication under the GC may be
forfeited for security reasons.122
11.6.4 Citizens of Neutral States in Occupied Territory. Citizens of neutral States
residing within an occupied territory are generally treated the same as other residents of occupied
territory.123
11.7 AUTHORITY OF THE OCCUPYING POWER OVER INHABITANTS
The Occupying Power’s authority over inhabitants of occupied territory derives from its
war powers and from its duty to ensure public order and safety in occupied territory. The
Occupying Power, as a belligerent State, may take such measures of control and security in
regard to protected persons as may be necessary as a result of the war.124 In addition, the
Occupying Power may take measures necessary to fulfill its duty to ensure public order and
safety.125
11.7.1 Inhabitants’ Obedience to the Occupying Power. It is the duty of the inhabitants
to carry on their ordinary peaceful pursuits, to behave in an absolutely peaceful manner, to take
119 See Trial of Robert Wagner, Gauleiter and Head of the Civil Government of Alsace during the Occupation, and
Six Others, III U.N. LAW REPORTS 23, 45 (Permanent Military Tribunal at Strasbourg, Apr. 23-May 3, 1946, and
Court of Appeal, Jul. 24, 1946) (“Wagner put forward a plea based upon an alleged violation by false application of
the Ordinance of 28th August, 1944, claiming that the acts alleged were committed in Alsace, which was annexed
by Germany, and on territory over which French sovereignty had ceased to operate. The purported declaration of
annexation of Alsace by Germany on which reliance was placed in the plea was deemed by the Court of Appeal to
be nothing more than a unilateral act which could not legally modify the clauses of the treaty signed at Versailles on
28th June, 1919, by the representatives of Germany. Therefore the acts alleged to have been committed by Wagner
were committed in Alsace, French territory, and constituted war crimes in the sense of Art. 1 of the Ordinance of
28th August, 1944.”).
120 Refer to § 10.1.1.2 (Special Agreements Under the GC).
121 Refer to § 10.3.6 (Non-Renunciation of Rights Secured by the GC).
122 Refer to § 10.4.2 (Derogation in Occupied Territory).
123 Refer to § 15.6.4 (Neutral Persons Resident in Occupied Territory).
124 Refer to § 10.6 (Measures of Control and Security).
125 Refer to § 11.5.1 (Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and Safety).
758
no part whatever in the hostilities carried on, to refrain from all injurious acts toward the forces
or in respect to their operations, and to render strict obedience to the orders of the occupant.126
Subject to the restrictions imposed by international law, the Occupying Power may
demand and enforce from the inhabitants of occupied territory such obedience as may be
necessary for the security of its forces, for the maintenance of law and order, and for the proper
administration of the country.127
The inhabitant’s obedience to the Occupying Power is generally distinguished from a
duty of allegiance.128 The inhabitant’s duty of allegiance to his or her State of nationality is not
severed.129 The inhabitants, however, are not bound to obey their State of nationality.130
11.7.1.1 Enforcement of Obedience. The Occupying Power’s enforcement of
obedience must comply with the law of war. For example, measures prohibited by the law of
war, such as collective punishments, acts of torture, or reprisals, may not be used.
11.7.2 Censorship and Other Regulation of the Media. Under the law of belligerent
occupation,131 for the purposes of security, an Occupying Power may establish censorship or
126 1956 FM 27-10 (Change No. 1 1976) ¶432 (“It is the duty of the inhabitants to carry on their ordinary peaceful
pursuits, to behave in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrain
from all injurious acts toward the troops or in respect to their operations, and to render strict obedience to the orders
of the occupant.”).
127 1956 FM 27-10 (Change No. 1 1976) ¶432 (“Subject to the restrictions imposed by international law, the
occupant can demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for
the security of its forces, for the maintenance of law and order, and for the proper administration of the country.”).
128 Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The
Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 37 (1907) (“But the control
which the commanding general exercises over the inhabitants of occupied territory is not based upon any theory of
allegiance, their relation to him being out of constrained obedience to his commands. As the allegiance of the
population has not been changed, the occupying commander can not compel the individuals composing it to commit
acts of treason; that is, to take part in acts of hostility against their own government.”).
129 GC COMMENTARY 346 (“The words ‘duty of allegiance’ [in Article 68 of the GC] constitute an acknowledgment
of the fundamental principle according to which the occupation does not sever the bond existing between the
inhabitants and the conquered State. Protected persons must nevertheless obey legitimate orders issued by the
Occupying Power.”); GC COMMENTARY 305 (“It may be mentioned in this connection that public officials and
judges act under the superintendence and control of the occupant to whom legal power has passed in actual practice
and to whom they, like any other protected person, owe obedience. But this duty of obedience does not cancel out
the duty of allegiance which subsists during the period of occupation.”).
130 United States v. Rice, 17 U.S. 246, 254 (1819) (Story, J.) (“By the conquest and military occupation of Castine,
the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that
place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United
States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and
submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British
government, and were bound by such laws, and such only, as it chose to recognise and impose. From the nature of
the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty,
there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws,
to be deemed a foreign port; and goods imported into it by the inhabitants, were subject to such duties only as the
British government chose to require. Such goods were in no correct sense imported into the United States.”).
759
regulation of any or all forms of media (e.g., press, radio, television) and entertainment (e.g.,
theater, movies), of correspondence, and of other means of communication.132 For example, an
Occupying Power may prohibit entirely the publication of newspapers that pose a threat to
security, or it may prescribe regulations for the publication or circulation of newspapers of other
media for the purpose of fulfilling its obligations to restore public order.133
The Occupying Power is not required to furnish facilities for postal service, but may take
charge of them itself, especially if the officials of the occupied district fail to act or to obey its
orders.134
11.7.3 Control of Means of Transportation. An Occupying Power is entitled to exercise
authority over all means of public and private transportation, whether land, waterborne, or air,
within the occupied territory, and may seize them and regulate their operation.135
11.7.4 Limits on Safety Measures. If the Occupying Power considers it necessary, for
imperative reasons of security, to take safety measures concerning protected persons, it may, at
the most, subject them to assigned residence or to internment.136 The Occupying Power must
comply with certain procedural requirements (e.g., appeal, periodic review) when conducting
assigned residence or internment of protected persons in occupied territory based on imperative
reasons of security.137 The Occupying Power also has an obligation to support persons who are
assigned residence and thus are required to leave their homes, consistent with the standards for
the treatment of internees.138
131 The discussion in this sub-section focuses solely on what is permitted under the law of war and does not address
possible implications of censorship under the First Amendment of the Constitution.
132 1956 FM 27-10 (Change No. 1 1976) ¶377 (“The belligerent occupant may establish censorship of the press,
radio, theater, motion pictures, and television, of correspondence, and of all other means of communication. It may
prohibit entirely the publication of newspapers or prescribe regulations for their publication and circulation.”).
133 For example, Coalition Provisional Authority Public Notice, Towards a Responsible Iraqi Media, Jun. 10, 2003
(“Disseminating material that incites violence, however poses a direct threat to personal freedoms, and is therefore
banned under the terms of this order, as it is in any civilized society. Equally, advocating the return to power of the
repressive and criminal Ba’athist regime would undermine civil order and the freedom from fear of political
repression, both of which are necessary for the development of a free and democratic Iraq. Thus the CPA is issuing
an Order that prohibits Iraqi media organizations from broadcasting or publishing material that would seriously
undermine security and civil order in Iraq.”).
134 1956 FM 27-10 (Change No. 1 1976) ¶377 (“The occupant is not required to furnish facilities for postal service,
but may take charge of them itself, especially if the officials of the occupied district fail to act or to obey its
orders.”).
135 1956 FM 27-10 (Change No. 1 1976) ¶378 (“The belligerent occupant exercises authority over all means of
transportation, both public and private, within the occupied district, and may seize them and regulate their
operation.”).
136 Refer to § 10.6.3 (No Measures of Control More Severe Than Assigned Residence or Internment).
137 Refer to § 10.9.3 (Procedure for Internment or Assigned Residence in Occupied Territory).
138 Refer to § 10.6.4 (Support to Persons Who Are Assigned Residence Should Be Guided by Internment Standards).
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11.8 ADMINISTRATION OF OCCUPIED TERRITORY
11.8.1 Paramount Authority of the Occupying Power Over Government Functions in
Occupied Territory. The functions of the hostile government—whether of a general, provincial,
or local character—continue only to the extent they are sanctioned by the Occupying Power.139
11.8.2 Continued Performance of Duties by Civil Servants and Other Officials of Local
Governments. The Occupying Power may, while retaining its paramount authority, permit the
government of the country to perform some or all of its normal functions.140 It may, for
example, call upon the local authorities to administer designated rear areas, subject to the
guidance and direction of the Occupying Power.141 Such action is consistent with the status of
occupation, so long as there exists the firm possession of territory and the purpose to maintain
paramount authority.142 Similarly, for example, courts are generally to continue the ordinary
administration of justice during occupation.143
The compulsion of civil servants and other officials of local governments to continue to
perform their duties must be justified by military necessity and consistent with applicable
provisions of the GC.144
11.8.3 Local Governments Under Duress or Surrogate Governments. The restrictions
placed upon the authority of a belligerent State cannot be avoided by a system of using a puppet
government, central or local, to carry out acts that would be unlawful if performed directly by the
Occupying Power. Acts induced or compelled by the Occupying Power are nonetheless its
acts.145
139 1956 FM 27-10 (Change No. 1 1976) ¶367a (“The functions of the hostile government—whether of a general,
provincial, or local character—continue only to the extent they are sanctioned by the occupant.”). For example,
Coalition Provisional Authority Regulation No. 1, §2 (May 16, 2003) (“Unless suspended or replaced by the CPA or
superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall
continue to apply in Iraq insofar as the laws do not prevent the CPA from exercising its rights and fulfilling its
obligations, or conflict with the present or any other Regulation or Order issued by the CPA.”).
140 1956 FM 27-10 (Change No. 1 1976) ¶367b (“The occupant may, while retaining its paramount authority, permit
the government of the country to perform some or all of its normal functions. It may, for example, call upon the
local authorities to administer designated rear areas, subject to the guidance and direction of the occupying power.
Such action is consistent with the status of occupation, so long as there exists the firm possession and the purpose to
maintain paramount authority.”).
141 For example, Reports of General MacArthur, in I Supplement MacArthur in Japan: The Occupation: Military
Phase 25-26 (1966) (“While the air lift of the main initial force was in progress on 30 August, GHQ, AFPAC, issued
an amendment to Operations Instructions No. 4, which materially altered the missions assigned to the Army
commanders who soon would be arriving on the Nippon homeland. Instead of actually instituting ‘military
government,’ Army commanders were to supervise the execution of the policies relative to government functions
which GHQ, AFPAC, was to issue directly to the Japanese Government;”).
142 Refer to § 11.2.2.2 (“Under the Authority” - Suspension and Substitution of Governmental Authority).
143 Refer to § 11.10 (Ordinary Courts in Occupied Territory).
144 Refer to § 11.21.1 (Continued Service of Judges and Other Public Officials).
145 1956 FM 27-10 (Change No. 1 1976) ¶366 (“The restrictions placed upon the authority of a belligerent
government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which
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11.8.4 Responsibility of the Occupying Power for Treatment Accorded to Protected
Persons by Its Agents. An Occupying Power, like belligerent States, is responsible for the
treatment accorded to protected persons by its agents, irrespective of any individual
responsibility that may be incurred.146 The responsibility of the Occupying Power for its agents
includes those agents that are not its nationals, such as locally recruited agents of the nationality
of the State whose territory is occupied.147
11.8.5 Immunity of Occupation Personnel From Local Law. Military and civilian
personnel of the occupying forces and occupation administration and persons accompanying
them are not subject to the local law or to the jurisdiction of the local civil or criminal courts of
the occupied territory, unless expressly made subject thereto by a competent officer of the
Occupying Power.148
It is important for the Occupying Power to ensure that an appropriate system of
substantive law applies to such persons and that tribunals are in existence to deal with civil
litigation to which they are parties and with offenses committed by them.149 In the past, provost
courts have been used for these purposes.150 In recent practice, the Uniform Code of Military
Justice and the Military Extraterritorial Jurisdiction Act, among others, have been used to
address offenses committed by military and civilian personnel in the context of occupation.151
would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant are
nonetheless its acts.”).
146 Refer to § 10.3.5 (State Responsibility for Its Agents’ Treatment of Protected Persons); § 18.9.1 (State
Responsibility for Violations of the Law of War by Its Armed Forces).
147 GC COMMENTARY 212 (“The nationality of the agents does not affect the issue. That is of particular importance
in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally
recruited agents of the nationality of the occupied country.”).
148 1956 FM 27-10 (Change No. 1 1976) ¶374 (“Military and civilian personnel of the occupying forces and
occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of
the local courts of the occupied territory unless expressly made subject thereto by a competent officer of the
occupying forces or occupation administration.”). For example, Coleman v. Tennessee, 97 U.S. 509, 518-19 (1878)
(“The laws of Tennessee with regard to offenses and their punishment, which were allowed to remain in force
during its military occupation, did not apply to the defendant, as he was at the time a soldier in the army of the
United States and subject to the Articles of War. He was responsible for his conduct to the laws of his own
government only as enforced by the commander of its army in that state, without whose consent he could not even
go beyond its lines. Had he been caught by the forces of the enemy after committing the offense, he might have
been subjected to a summary trial and punishment by order of their commander, and there would have been no just
ground of complaint, for the marauder and the assassin are not protected by any usages of civilized warfare. But the
courts of the state, whose regular government was superseded and whose laws were tolerated from motives of
convenience, were without jurisdiction to deal with him.”).
149 1956 FM 27-10 (Change No. 1 1976) ¶374 (“The occupant should see to it that an appropriate system of
substantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they
are parties and with offenses committed by them.”).
150 Refer to § 11.11.3.1 (U.S. Practice for Properly Constituted, Non-Political Military Courts).
151 Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses); § 18.19.3.5 (Extraterritorial Application of
Certain Federal Offenses Through MEJA).
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11.8.6 Civilian or Military Nature of the Occupation Government. It is immaterial
whether the government over an enemy’s territory consists in a military or civil or mixed
administration. Its character is the same and the source of its authority the same. It is a
government imposed by force, and the legality of its acts is determined by the law of war.152
For example, the governing authority established by the Occupying Power may be
composed of civilian personnel.153
11.9 LOCAL LAW AND LEGISLATION
11.9.1 General Continuation of Municipal Law of the Occupied Territory as Between
Inhabitants. In general, the municipal law of the occupied territory (i.e., the ordinary domestic
civil and criminal law) and their administration remain in full force so far as the inhabitants of
occupied territory are concerned, unless changed by the Occupying Power.154 For example, the
penal laws of the occupied territory generally continue in force.155
As a foreign State and as the paramount authority in the occupied territory, the
Occupying Power is not bound by the municipal law of the occupied territory.156 For example,
the Occupying Power would not be bound by a municipal law that had been enacted by the State
of the occupied territory to prevent trading with the enemy.157 Similarly, the Occupying Power’s
personnel are immune from the application of local law.158
152 1956 FM 27-10 (Change No. 1 1976) ¶368 (“It is immaterial whether the government over an enemy’s territory
consists in a military or civil or mixed administration. Its character is the same and the source of its authority the
same. It is a government imposed by force, and the legality of its acts is determined by the law of war.”).
153 For example, E. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY 1944-1946 404 (1975) (“From the
beginning the US Group Control Council had been considered more a vehicle for future civilian authority than an
element of Army-administered military government. In April 1945, in his first outline for military government
organization, Clay proposed also to bring civilians into the theater G-5 so that both it and the US Group Control
Council could be ‘carved out of’ the military command when the shift to civilian responsibility occurred. A month
later, in the organizational directive for military government, Clay stated, ‘This organization must become civilian in
character as rapidly as consistent with efficient performance so that it may become at the earliest possible date a
framework for the administration of political control in Germany by the appropriate US civil agencies.’”).
154 Coleman v. Tennessee, 97 U.S. 509, 517 (1879) (“By such occupation the political relations between the people
of the hostile country and their former government or sovereign are for the time severed; but the municipal laws --
that is, the laws which regulate private rights, enforce contracts, punish crime, and regulate the transfer of property -
- remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended or
superseded by the conqueror. And the tribunals by which the laws are enforced continue as before, unless thus
changed. In other words, the municipal laws of the State, and their administration, remain in full force so far as the
inhabitants of the country are concerned, unless changed by the occupying belligerent.”). See also Ho Tung & Co.
v. United States, 42 Ct. Cl. 213, 227 (Ct. Cl. 1907) (“It is unquestioned that upon the occupation by our military
forces of the port of Manila it was their duty to respect and assist in enforcing the municipal laws then in force there
until the same might be changed by order of the military commander, called for by the necessities of war.”).
155 Refer to § 11.11.1 (General Continuation of Penal Laws of the Occupied Territory).
156 Refer to § 11.8.1 (Paramount Authority of the Occupying Power Over Government Functions in Occupied
Territory).
157 For example, N.V. De Bataafsche Petroleum Maatschappli & Ors. v. The War Damage Commission (Court of
Appeal, Singapore, April 13, 1956), reprinted in 51 AJIL 802, 807 (1957) (‘The provisions of the [Netherlands
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11.9.2 Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal
Law Applicable to Occupied Territory. The duty of the Occupying Power to respect, unless
absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its
authority to suspend, repeal, or change the municipal law applicable to occupied territory.159 As
with other authorities under the law of war, the Occupying Power must use its power with
respect to the municipal law of occupied territory in good faith and not for the purpose of
oppressing the population.160
The Occupying Power may subject the population of the occupied territory to provisions:
(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to
maintain the orderly government of the territory; and (3) to ensure the security of the Occupying
Power, of the members and property of the occupying forces or administration, and likewise of
the establishments and lines of communication used by them.161
Broader authority for the Occupying Power to change the laws of the occupied territory
may be provided by the U.N. Security Council.162
After the Occupying Power’s occupation has ended, its changes to the municipal law of
the occupied territory may be changed, subject to the requirements of applicable international
law.
11.9.2.1 Distinction Between Suspension, Repeal, Change, or Enactment of
Municipal Laws. The distinction between the suspension, repeal, change, or enactment of a new
law may be of little practical consequence.
Implicit in the authority to enact new laws is the authority to suspend or repeal existing
laws. Thus, the repeal or suspension of a law may be accomplished by the Occupying Power
subjecting the population of the occupied territory to additional provisions of law that are
Indies] Wartime Legal Relations Ordinance were, no doubt, very appropriate when applied to ‘persons,’ as defined
in section 1 of the Ordinance, but to contend that they apply to a belligerent occupant, that is to say, to an
International Person, who is thereby placed under a statutory obligation to seek the permission of the Director of
Economic Affairs before doing any act which might benefit the enemy (which is, of course, himself) is, to my mind,
an untenable proposition.”).
158 Refer to § 11.8.5 (Immunity of Occupation Personnel From Local Law).
159 Refer to § 11.5.2 (Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country).
160 GC COMMENTARY 337 (“It will be seen that the powers which the Occupying Power is recognized to have are
very extensive and complex, but these varied measures must not under any circumstances serve as a means of
oppressing the population. The legislative and penal jurisdiction exercised by the occupation authorities, as holder
of public power, is therefore hedged about with numerous safeguards set forth in the following Articles.”).
161 GC art. 64 (“The Occupying Power may, however, subject the population of the occupied territory to provisions
which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain
the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and
property of the occupying forces or administration, and likewise of the establishments and lines of communication
used by them.”).
162 Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).
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inconsistent with the earlier law. For example, a law permitting discrimination may be
effectively suspended by the Occupying Power requiring officials to apply the law impartially.163
The power to suspend or repeal laws may also include the power to amend laws. For
example, the partial suspension of a tax imposed on the population may also be viewed as a
change in the tax rate.164
However, new penal provisions may not come into force before they have been
published.165
11.9.2.2 Examples of Laws That May Be Suspended, Repealed, Changed, or
Enacted by the Occupying Power. Examples of provisions that may, depending on the
circumstances, be suspended, repealed, changed, or enacted by the Occupying Power include
legal provisions:
• relating to serious offenses that pose a threat to public order, such as kidnapping, rape,
and forcible vehicle larceny;166
• relating to the sale or possession of weapons by members of the civilian population;167
• relating to measures for the protection of the Occupying Power’s forces or administration
(e.g., laws relating to the recruitment of persons into the occupied State’s armed forces or
insurgent groups, relating to curfews or restricted areas);168
163 For example, Coalition Provisional Authority Order No. 7, Penal Code, §4 (Jun. 10, 2003) (“In exercising their
official functions, all persons undertaking public duties or holding public office, including all police, prosecutors,
and judges, must apply the law impartially. No person will be discriminated against on the basis of sex, race, color,
language, religion, political opinion, national, ethnic or social origin, or birth.”).
164 Refer to § 11.22.1.2 (Changes in Taxes or New Taxes).
165 Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).
166 For example, Coalition Provisional Authority Order No. 31, Modifications of Penal Code and Criminal
Proceedings Law, preamble, §§2-3, 5 (Sept. 10, 2003) (modifying sentences for certain offenses in the Iraqi Penal
Code based on the recognition that “instances of kidnapping, rape, and forcible vehicle larceny represent a serious
threat to the security and stability of the Iraqi population”).
167 For example, COLONEL I. L. HUNT, AMERICAN MILITARY GOVERNMENT OF OCCUPIED GERMANY, 1918-1920:
REPORT OF THE OFFICER IN CHARGE OF CIVIL AFFAIRS, THIRD ARMY AND AMERICAN FORCES IN GERMANY 107
(1943) (“‘The carrying of arms or deadly weapons is forbidden except by the local police. Every person in
possession of arms and ammunition of any kind must deliver them to the American authorities at such time or place
as may be appointed. A receipt for each weapon will be given at the time of delivery and the weapon tagged with
the name of the owner.’ Precedents for forbidding the civil population to carry arms and ammunition during a
military occupation are so numerous that the publication of such regulations by the American army in this instance
cannot be considered a severe restriction. During the march to the Rhine, the Commanding General of the Third
Army had recognized the necessity of a regulation of this nature, and in Memorandum No. 4 had instructed unit
commanders to forbid civilians to carry deadly weapons.”).
168 GC COMMENTARY 337 (“(c) It is, lastly, authorized to promulgate penal provisions for its own protection. This
power has long been recognized by international law. The provision is sufficiently comprehensive to cover all
civilian and military organizations which an Occupying Power normally maintains in occupied territory. The
Convention mentions ‘the Occupying Power’ itself besides referring to the members and property of the occupying
765
• relating to political process, such as laws regarding the rights of suffrage and of
assembly;169
• relating to the supply of food and other items essential to the survival of the civilian
population, and the prevention of illicit trade in, or hoarding of, such items;170
• relating to the administration of the law, such as repealing laws establishing racial
discrimination or promulgating laws requiring the impartial application of the law by
local officials;171 and
• relating to the Occupying Power’s obligations under the GC, such as legislation to help
provide for child welfare, labor, food, hygiene, and public health of the occupied
territory.172
11.9.3 Procedural Obligation - Notification to the Population of Changes in Law. The
Occupying Power is not required to adhere to the local procedure for amending municipal law.
However, the population of the occupied territory must be informed of the alteration, suspension,
forces or administration, so that general activities such as activities on behalf of enemy armed forces are covered.
The Occupying Power is entitled to use establishments and lines of communication for its own needs; it is therefore
entitled to take appropriate measures to ensure their security.”).
169 1956 FM 27-10 (Change No. 1 1976) ¶371 (“The occupant may alter, repeal, or suspend laws of the following
types: a. Legislation constituting a threat to its security, such as laws relating to recruitment and the bearing of
arms. b. Legislation dealing with political process, such as laws regarding the rights of suffrage and of assembly. c.
Legislation the enforcement of which would be inconsistent with the duties of the occupant, such as laws
establishing racial discrimination.”).
170 For example, COLONEL I. L. HUNT, AMERICAN MILITARY GOVERNMENT OF OCCUPIED GERMANY, 1918-1920:
REPORT OF THE OFFICER IN CHARGE OF CIVIL AFFAIRS, THIRD ARMY AND AMERICAN FORCES IN GERMANY 164-65
(1943) (“Sale of American foodstuffs was by the ticket system. … The method of using the food tickets, was, in
brief, as follows. Each person or head of family was issued the number of coupons to which he was entitled, each
coupon authorizing him to buy a certain quantity of a certain food, within a certain period of time. There were also
coupons, not bearing the name of any particular food, but numbered, to be used for foods not regularly issued. The
coupons entitled the holder to register with some merchant of his own choice, who in turn registered his total
requirements with the local Food Office. When the food arrived, each merchant was allotted the amount necessary
to provide for the persons registered with him. Announcements of distribution were made in the daily papers. The
merchant kept the coupons to indicate the amounts and regularity of his sales. Any allotment not entirely sold,
might be returned to the food authorities or debited against the next allotment. The system seemed simple enough,
but there was considerable traffic in tickets. Well-to-do people seldom suffered for lack of food, though they may
often not have been able to get the variety they wanted.”).
171 For example, Coalition Provisional Authority Order No. 7, Penal Code, §4 (Jun. 10, 2003) (“In exercising their
official functions, all persons undertaking public duties or holding public office, including all police, prosecutors,
and judges, must apply the law impartially. No person will be discriminated against on the basis of sex, race, color,
language, religion, political opinion, national, ethnic or social origin, or birth.”).
172 GC COMMENTARY 337 (“The legislative power of the occupant as the Power responsible for applying the
Convention and the temporary holder of authority is limited to the matters set out in a limitative list below. (a) It
may promulgate provisions required for the application of the Convention in accordance with the obligations
imposed on it by the latter in a number of spheres: child welfare, labour, food, hygiene and public health etc.”).
766
or repeal of existing laws, and of the enactment of new laws. In particular, penal provisions must
be published before entering into force.173
In practice, to ensure that all inhabitants are on notice of what is expected, the Occupying
Power is to publish a decree or order at, or immediately after, the beginning of the occupation, in
order to clarify the applicable laws and orders, and the punishments that can be imposed if the
inhabitants fail to comply. Such notification may be provided as part of a proclamation of
occupation.174
11.10 ORDINARY COURTS IN OCCUPIED TERRITORY
In general, the courts and other tribunals of the occupied territory, like other
governmental functions, should continue to operate.175 For example, ordinary crimes that do not
affect the security of the Occupying Power or its personnel should continue to be administered
by the courts in the occupied territory.176
However, the administration of justice in the occupied territory, like the performance of
other governmental functions, is subject to the direction of the Occupying Power.177
11.10.1 Authority to Suspend Ordinary Courts. The ordinary courts in occupied territory
should be suspended only if: (1) judges and magistrates are unable or unwilling to perform their
duties; (2) the courts are corrupt or unfairly constituted; or (3) the local judicial administration
has collapsed due to the hostilities preceding the occupation.178
In such cases, the Occupying Power may use its own properly constituted, non-political
military courts to ensure that offenses against the local laws are properly tried.179 The
173 Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).
174 Refer to § 11.2.4 (Proclamation of Occupation).
175 LIEBER CODE art. 6 (“All civil and penal law shall continue to take its usual course in the enemy’s places and
territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the
functions of the hostile government - legislative, executive, or administrative - whether of a general, provincial, or
local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the
participation of the occupier or invader.”).
176 Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).
177 For example, Coalition Provisional Authority Order No. 7, Penal Code, §1 (Jun. 10, 2003) (“All judges, police
and prosecutors shall perform their duties in accordance with CPA Regulation No. 1 (CPA/REG/23 May 2003/01)
and in accordance with any other Regulations, Orders, Memoranda or instructions issued by the CPA.”).
178 1956 FM 27-10 (Change No. 1 1976) ¶373 (“The ordinary courts of justice should be suspended only if: a.
Judges and magistrates abstain from fulfilling their functions (see GC, art. 54; par. 422 herein); or b. The courts are
corrupt or unfairly constituted; or c. Local judicial administration has collapsed during the hostilities preceding the
occupation and the occupant must set up its own courts to ensure that offenses against the local laws are properly
tried. In such cases, the occupant may establish courts of its own and make this measure known to the
inhabitants.”).
179 Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).
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Occupying Power may also reform local courts, including by establishing new criminal courts
under the law of the occupied State.180
11.10.1.1 Judicial Inability or Unwillingness to Perform Their Duties. Judges
and magistrates may abstain from fulfilling their functions for reasons of conscience.181 An
inability to perform their normal duties may result from a failure of public services, such as
public transportation, or threats by insurgents.
11.10.1.2 Corruption and Unfairness in the Judicial System. Corruption and
unfairness in the judicial system may constitute a serious obstacle to public order and safety, and
an obstacle to the Occupying Power’s application of the fundamental fair trial protections
guaranteed by the GC.182 The Occupying Power may take appropriate measures to remedy such
corruption or unfairness. For example, committees may be established to review the suitability
of judges and prosecutors.183 Similarly, a facility may be established to help resolve conflicting
property claims on a voluntary basis.184
11.10.2 Prohibition Against Extinguishing Rights and Actions of Enemy Nationals. It is
especially forbidden to declare abolished, suspended, or inadmissible in a court of law the rights
and actions of the nationals of a hostile party.185
This rule has been interpreted to apply solely to enemy areas occupied by a belligerent.186
It has been interpreted to prohibit a military commander from arbitrarily annulling the results of
civil proceedings between private parties.187
180 Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).
181 Refer to § 11.21.1 (Continued Service of Judges and Other Public Officials).
182 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety); § 10.29 (Judicial Proceedings
Regarding Protected Persons in Occupied Territory or Internees in a Belligerent’s Home Territory).
183 For example, Coalition Provisional Authority Order No. 15, Establishment of the Judicial Review Committee,
§4(1) (Jun. 23, 2003) (“The Committee shall investigate and gather information on the suitability of Judges and
Prosecutors to hold office. It shall have the power to remove judges and prosecutors from office, confirm their
continued holding of office, appoint replacements for judges and prosecutors removed from office and resolve the
claims of judges and prosecutors who assert that they were improperly removed from office.”).
184 For example, Coalition Provisional Authority Regulation No. 4, Establishment of the Iraqi Property
Reconciliation Facility, §1(1) (Jun. 26, 2003) (“There shall be established an Iraqi Property Reconciliation Facility
(IPRF) that shall commence operation at a time to be fixed by the Administrator, for the purpose of collecting real
property claims and promptly resolving such claims on a voluntary basis in a fair and judicious manner.”).
185 HAGUE IV REG. art. 23 (“[I]t is especially forbidden … (h) To declare abolished, suspended, or inadmissible in a
court of law the rights and actions of the nationals of a hostile party.”).
186 Ex parte Kumezo Kawato, 317 U.S. 69, 72 footnote 1 (1942) (“Petitioner argues that his case is covered by
article 23 h of the Annex to the IVth Hague Convention of 1907: ‘It is especially prohibited . . . to declare
abolished, suspended, or inadmissible in a Court of law the rights and action of the nationals of the hostile party.’
This clause, which was added to the convention of 1899 without substantial discussion either by the Delegates in
General Assembly or by the committee and sub-committee which dealt with it, III Proceedings of the Hague
Convention of 1907, 12, 107, 136, 240; and I ibid. 83, was construed by an English Court to apply solely in enemy
areas occupied by a belligerent. Porter v. Freudenberg, [1915] 1 K. B. 857. The question has not been raised in the
courts in this country, but the English interpretation was repeated with approval by Representative Montague of the
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11.11 CRIMINAL LAW IN OCCUPIED TERRITORY
This section addresses criminal law in occupied territory. Additional rules apply to
judicial proceedings against protected persons in occupied territory, which are also applied by
analogy to judicial proceedings against internees in a belligerent’s home territory.188
11.11.1 General Continuation of Penal Laws of the Occupied Territory. The general
principle that the Occupying Power must respect, unless absolutely prevented, the laws in force
in the occupied territory also applies to the penal laws of the occupied territory.189
In particular, the penal laws of the occupied territory shall remain in force during the
occupation, with the exception that they may be repealed or suspended by the Occupying Power
where they constitute a threat to its security or an obstacle to the application of the GC.190
Subject to the latter consideration and to the necessity of ensuring the effective administration of
justice, the courts of the occupied territory shall continue to function in respect of all offenses
covered by these laws.191
Interstate Commerce Committee in his address to the House when he presented to it the Trading with the Enemy
Act. 55 Cong. Rec. 4842 (1917).”).
187 For example, 1958 UK MANUAL ¶524 note 1 (“Hague Rules 23 (h). The following example of the relevance of
that article may be mentioned: during the British occupation of Cyrenaica in the course of the Second World War,
in order to avoid disturbances, pressure was put upon the British administration to prevent the execution of a local
judgment restoring to its Italian owner a mill in the occupation of an Arab trustee. The legal adviser of the
Administration expressed the view that a failure to enforce the judgment would be contrary to this article, see Watts
in Grotius Society, vol. 37, pp. 69-82.”). Cf. Ochoa v. Hernandez y Morales, 230 U.S. 139, 154-61 (1912) (“In
order to determine the extent of the authority of General Henry, and the limitations upon it, we must look to the
orders under which the military government was established and maintained. … Under all the circumstances we
deem it clear that the Governor was without authority from the President to make any order, judicial in its nature,
that would have the effect of depriving any person of his property without due process of law. … Whatever else may
be uncertain about the definition of the term ‘due process of law,’ all authorities agree that it inhibits the taking of
one man's property and giving it to another, contrary to settled usages and modes of procedure, and without notice or
an opportunity for a hearing.); Raymond v. Thomas, 91 U.S. 712, 715-16 (1876) (“We have looked carefully
through the acts of March 2, 1867, and July 19, 1867. They give very large governmental powers to the military
commanders designated, within the States committed respectively to their jurisdiction; but we have found nothing to
warrant the order here in question. It was not an order for mere delay. It did not prescribe that the proceeding
should stop until credit and confidence were restored, and business should resume its wonted channels. It wholly
annulled a decree in equity regularly made by a competent judicial officer in a plain case clearly within his
jurisdiction, and where there was no pretense of any unfairness, of any purpose to wrong or oppress, or of any
indirection whatsoever. … It was an arbitrary stretch of authority, needful to no good end that can be imagined.”).
188 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a
Belligerent’s Home Territory).
189 Refer to § 11.9.1 (General Continuation of Municipal Law of the Occupied Territory as Between Inhabitants).
190 GC art. 64 (“The penal laws of the occupied territory shall remain in force, with the exception that they may be
repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle
to the application of the present Convention.”).
191 GC art. 64 (“Subject to the latter consideration and to the necessity for ensuring the effective administration of
justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said
laws.”).
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11.11.1.1 Types of Laws That Are Considered Penal Laws. Penal laws addressed
by this rule may be understood to include all laws, regulations, decrees, orders, and similar
measures intended to repress offenses, including the rules of criminal procedure.192
11.11.1.2 Laws Constituting an Obstacle to the Application of the GC. The
Occupying Power may repeal or suspend penal laws constituting an obstacle to the application of
the GC. For example, the Occupying Power may abrogate discriminatory measures that are
incompatible with humane requirements.193
11.11.1.3 Method of Repeal or Suspension of Penal Laws. The repeal or
suspension of the penal laws of the occupied territory may be achieved directly through an order
suspending or repealing the law.194 The suspension of a penal law may also be done by requiring
that a penal law may only be enforced with the approval of the Occupying Power.195 The repeal
or suspension of a penal law may also be done by the Occupying Power’s subjecting the
population of the occupied territory to additional provisions of law that are inconsistent with
application of that penal law.196
11.11.1.4 Continued Administration of Penal Law by Courts in the Occupied
Territory. In general, ordinary crimes that do not affect the security of the Occupying Power or
its personnel would be left to the jurisdiction of the courts in the occupied territory.197
The continued administration of local and national penal law by the courts in occupied
territory is subject to certain modifications by the Occupying Power, such as modifications
necessary for ensuring the effective administration of justice.198
192 GC COMMENTARY 335 (“The words ‘penal laws’ mean all legal provisions in connection with the repression of
offenses: the penal code and rules of procedure proper, subsidiary penal laws, laws in the strict sense of the term,
decrees, orders, the penal clauses of administrative regulations, penal clauses of financial laws, etc.”).
193 GC COMMENTARY 335 (“The second reservation is in the interests of the population and makes it possible to
abrogate any discriminatory measures incompatible with humane requirements. It refers in particular, to provisions
which adversely affect racial or religious minorities, such provisions being contrary to the spirit of the Convention
(Article 27), which forbids all adverse distinction based, in particular, on race, religion, and political opinion.”).
194 For example, Coalition Provisional Authority Order No. 7, Penal Code, §2(1) (Jun. 10, 2003) (“Without
prejudice to the continuing review of Iraqi laws, the Third Edition of the 1969 Iraqi Penal Code with amendments,
registered in Baghdad on the fifth day of Jumada I 1389 or the nineteenth day of July 1969, shall apply, with the
exception that i) Part Two, Chapter Two, Paragraph 200, and ii) Part Two, Chapter Three, Section One, Paragraph
225 are hereby suspended.”).
195 For example, Coalition Provisional Authority Order No. 7, Penal Code, §2(2) (Jun. 10, 2003) (“Legal
proceedings may be brought with respect to the following offenses only with the written permission of the
Administrator of the CPA: a) Part One, Chapter Four, Paragraphs 81-84, publication offenses. b) Part Two, Chapter
One, Paragraphs 156-189, offenses against the external security of the state. c) Part Two, Chapter Two, Paragraphs
190-195; 198-199; 201-219, offenses against the internal security of the state. d) Part Two, Chapter Three, Section
One, Paragraphs 223-224; 226-228, offenses against public authorities. e) Part Two, Chapter Three, Section Two,
Paragraph 229, offense of insulting a public official.”).
196 Refer to § 11.9.2.1 (Distinction Between Suspension, Repeal, Change, or Enactment of Municipal Laws).
197 1956 FM 27-10 (Change No. 1 1976) ¶370 (“Crimes not of a military nature and not affecting the occupant's
security are normally left to the jurisdiction of the local courts.”).
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The Occupying Power may reform or establish new criminal courts in occupied territory
as part of its authority to subject the population of the occupied territory to additional provisions
of law and its duty to restore and maintain public order.199 In addition, the Occupying Power
may use its properly constituted, non-political military courts in occupied territory for certain
types of offenses.200
11.11.2 Penal Provisions Enacted by the Occupying Power. As with other types of legal
provisions, the Occupying Power may subject the population of the occupied territory to penal
provisions: (1) that are essential to enable the Occupying Power to fulfill its obligations under
the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of
the Occupying Power, of the members and property of the occupying forces or administration,
and likewise of the establishments and lines of communication used by them.201
11.11.2.1 Publication of Penal Provisions Before Coming Into Force. The penal
provisions enacted by the Occupying Power shall not come into force before they have been
published and brought to the knowledge of the inhabitants in their own language.202 When more
than one language is used by the local population, the Occupying Power may adhere to the local
practice regarding official publication of legislation.203
The effect of these penal provisions shall not be retroactive.204
11.11.3 Properly Constituted, Non-Political Military Courts in Occupied Territory. In
case of a breach of the penal provisions promulgated by the Occupying Power by virtue of the
second paragraph of Article 64 of the GC, the Occupying Power may hand over the accused to
198 1956 FM 27-10 (Change No. 1 1976) ¶370 (“In restoring public order and safety, the occupant will continue in
force the ordinary civil and penal (criminal) laws of the occupied territory except to the extent it may be authorized
by Article 64, GC (par 369), and Article 43, HR (par. 363), to alter, suspend, or repeal such laws (see also HR art. 23
(h); par. 372 herein; and GC, art. 51; par. 418 herein). These laws will be administered by the local officials as far
as practicable.”).
199 For example, Coalition Provisional Authority Order No. 13, The Central Criminal Court of Iraq (Revised),
(Amended), §1(1) (Apr. 22, 2004) (“There shall be established a Central Criminal Court of Iraq (hereinafter ‘the
CCCI’), which shall sit in the city of Baghdad and in such sessions in other locations in Iraq as provided for in this
Order. The CCCI shall have national jurisdiction over all matters set forth in Section 18.”).
200 Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).
201 Refer to § 11.9.2 (Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal Law
Applicable to Occupied Territory).
202 GC art. 65 (“The penal provisions enacted by the Occupying Power shall not come into force before they have
been published and brought to the knowledge of the inhabitants in their own language.”).
203 GC COMMENTARY 338 footnote 3 (“In countries which have more than one official language the Occupying
Power will follow local practice and publish the penal provisions it enacts, in either one or more than one language,
according to whether the country’s legislation was published in one or in more than one language before the
occupation.”).
204 GC art. 65 (“The effect of these penal provisions shall not be retroactive.”).
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its properly constituted, non-political military courts, on condition that these courts sit in the
occupied country. Courts of appeals shall preferably sit in the occupied country.205
These courts must be regularly constituted courts affording all the judicial guarantees that
are recognized as indispensable by civilized peoples.206 These courts must also comply with
requirements for judicial proceedings regarding protected persons in occupied territory.207
11.11.3.1 U.S. Practice for Properly Constituted, Non-Political Military Courts.
The United States has a long history of using provost courts in occupied territory.208 In U.S.
practice, provost courts have been used as properly constituted, non-political military courts.
Service regulations have addressed the use of provost courts.209
11.11.3.2 Applicable Law in Properly Constituted, Non-Political Military Courts.
Properly constituted, non-political military courts shall apply only those provisions of law that
were applicable prior to the offense, and that are in accordance with general principles of law, in
particular the principle that the penalty shall be proportionate to the offense.210 The requirement
that properly constituted, non-political military courts shall apply only those provisions of law
that were applicable prior to the offense reflects the general rule that penal laws cannot be
retroactive and that there cannot be an offense or penalty unless the act in question was
205 GC art. 66 (“In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of
Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts,
on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied
country.”).
206 Refer to § 8.16 (Criminal Procedure and Punishment).
207 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a
Belligerent’s Home Territory).
208 For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 144 (1975) (“As
instruments for shaping relations between the population and the occupation forces, military government courts were
regarded as most important. They were expected, on the one hand, to enforce sternly the authority claimed in the
proclamation and ordinances and, on the other, to point up for the Germans the difference between nazism and
democracy by giving fair and impartial trials to all accused. Modeled after Army courts martial, the military
government courts convened on three levels: summary (one officer), intermediate (one or more officers), and
general (not less than three officers). Summary courts could impose up to one year in prison and fines in marks up
to $1,000; intermediate courts, ten years in prison and fines to $10,000; and general courts, the death penalty and
unlimited fines.”); WINTHROP, MILITARY LAW & PRECEDENTS 803-04 (“In the late civil war there was established at
New Orleans by the President, by an order of October 20, 1862, a civil court entitled the ‘Provisional Court of
Louisiana,’ with both civil and criminal jurisdiction. … As to its jurisdiction of crimes, this appears maintained in an
extended opinion of its judge, Hon. C.A. Peabody, in the cases of U.S. v. Reiter and Louis, charged with murder and
arson. … Other Provost Courts, with a jurisdiction assimilated in general to that of justices’ or police courts, were
established from time to time by military commanders during the war;”).
209 See, e.g., DEPARTMENT OF THE ARMY PAMPHLET 27-9-2, Military Judges’ Benchbook for Provost Courts (Oct. 4,
2004).
210 GC art. 67 (“The courts shall apply only those provisions of law which were applicable prior to the offence, and
which are in accordance with general principles of law, in particular the principle that the penalty shall be
proportionate to the offence.”); GC COMMENTARY 341 (“Article 67 relates to the military courts before which the
Occupying Power may bring accused persons under the terms of the preceding Article.”).
772
punishable under the law in force at the time the act was committed.211 The requirement that
properly constituted, non-political military courts shall apply only those provisions of law that
are in accordance with general principles of law includes the rule that punishments must be
based on individual responsibility.212
These courts shall also take into consideration the fact that the accused is not a national of
the Occupying Power.213
These courts also may, at their discretion, convert a sentence of imprisonment to one of
internment for the same period.214
11.11.4 Limitations on Penalties for Certain, Non-Serious Offenses Solely Intended to
Harm the Occupying Power. Protected persons who commit an offense that is solely intended to
harm the Occupying Power, but that is not an attempt on the life or limb of members of the
occupying forces or administration, nor a grave collective danger, nor seriously damage the
property of the occupying forces or administration, or the installations used by them, shall be
liable to internment or simple imprisonment, provided the duration of such internment or
imprisonment is proportionate to the offense committed.215
The minor offense must have been solely intended to harm the Occupying Power in order
to trigger these restrictions.216 For example, offenses such as traveling without a permit or
violating exchange control regulations would not fall under this restriction, but, nonetheless, may
result in internment or simple imprisonment.
211 GC COMMENTARY 341 (“The objet [sic] of the provision is to limit the possibility of arbitrary action by the
Occupying Power by ensuring that penal jurisdiction is exercised on a sound basis of universally recognized legal
principles. The rule that penal laws cannot be retroactive, which is stated here in general terms, had already been
mentioned at the end of Article 65. Nullum crimen, nulla poena sine lege is a traditional principle of penal law.
There can be no offence, and consequently no penalty, if the act in question is not referred to in a law in force at the
time it was committed and subject to punishment under that law.”). Refer to § 8.16.2.2 (No Crime or Punishment
Without Prior Law); § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).
212 GC COMMENTARY 342 (“The ‘general principles of law’, which are not set out individually here but are referred
to as a whole, include the rule concerning the personal nature of punishments, under which nobody may be punished
for an offence committed by someone else. This rule is also laid down in Article 33 mentioned above.”). Refer to
§ 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment); § 10.5.3.2 (Collective Penalties and
Measures of Intimidation or Terrorism).
213 GC art. 67 (“They shall take into consideration the fact that the accused is not a national of the Occupying
Power.”).
214 Refer to § 11.11.4.2 (Discretion of Non-Political, Military Courts to Convert Sentences of Imprisonment to
Sentences of Internment).
215 GC art. 68 (“Protected persons who commit an offence which is solely intended to harm the Occupying Power,
but which does not constitute an attempt on the life or limb of members of the occupying forces or administration,
nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the
installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such
internment or imprisonment is proportionate to the offence committed.”).
216 GC COMMENTARY 343 (“The minor offences must have been ‘solely’ intended to harm the Occupying Power.
The inclusion of the word ‘solely’ excludes acts which harm the Occupying Power indirectly.”).
773
11.11.4.1 Internment or Imprisonment as the Only Measure Adopted for
Depriving Protected Persons of Liberty for Such Offenses. Furthermore, internment or
imprisonment shall, for such offenses, be the only measure adopted for depriving protected
persons of liberty.217
Penalties that do not deprive the protected person of liberty, such as fines, or less severe
measures, such as arrest, are not addressed by this rule.218
11.11.4.2 Discretion of Non-Political, Military Courts to Convert Sentences of
Imprisonment to Sentences of Internment. Properly constituted non-political military courts may,
at their discretion, convert a sentence of imprisonment to one of internment for the same
period.219
11.11.5 Imposing the Death Penalty for Offenses Committed by Protected Persons in
Occupied Territory. The GC provides that the penal provisions promulgated by the Occupying
Power in accordance with Articles 64 and 65 of the GC may impose the death penalty against a
protected person only in cases where the person is guilty of espionage, or serious acts of
sabotage against the military installations of the Occupying Power, or of intentional offenses that
have caused the death of one or more persons, provided that such offenses were punishable by
death under the law of the occupied territory in force before the occupation began.220
However, the United States has reserved the right to impose the death penalty in
accordance with the provisions of Article 68, paragraph 2, of the GC without regard to whether
the offenses referred to in that paragraph are punishable by death under the law of the occupied
territory at the time the occupation begins.221 The United States expressed the position that an
Occupying Power would be unable to protect its own forces adequately against the activities of
illegal combatants unless it retained the authority to apply the death penalty, and the rule in
Article 68 of the GC would be subject to manipulation in that an adversary on the verge of being
217 GC art. 68 (“Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for
depriving protected persons of liberty.”).
218 GC COMMENTARY 344 (“It should be noted that internment and imprisonment are only mentioned as maximum
penalties, and less severe penalties still, such as placing under arrest or fines, may be applied in the case of persons
accused of minor offences.”).
219 GC art. 68 (“The courts provided for under Article 66 of the present Convention may at their discretion convert a
sentence of imprisonment to one of internment for the same period.”).
220 GC art. 68 (“The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65
may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious
acts of sabotage against the military installations of the Occupying Power or of intentional offences which have
caused the death of one or more persons, provided that such offences were punishable by death under the law of the
occupied territory in force before the occupation began.”).
221 United States, Statement on Ratification of the GC, Aug. 2, 1955, 213 UNTS 384 (“The United States reserves
the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard to
whether the offenses referred to therein are punishable by death under the law of the occupied territory at the time
the occupation begins.”).
774
occupied might repeal the death penalty to encourage subversive activities against an Occupying
Power.222
The death penalty may not be pronounced against a protected person unless the attention
of the court has been particularly called to the fact that since the accused is not a national of the
Occupying Power, he or she is not bound to it by any duty of allegiance.223
In any case, the death penalty may not be pronounced against a protected person who was
under eighteen years of age at the time of the offense.224
In practice, if an occupation is undertaken with coalition partners, the death penalty may
be suspended in order to address requests of these States.225
11.11.6 Deduction From Sentences of Period Under Arrest. In all cases, the duration of
the period during which a protected person accused of an offense is under arrest awaiting trial or
punishment shall be deducted from any period of imprisonment awarded.226
11.11.7 Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts. The
GC provides for certain limitations on the criminal jurisdiction of the Occupying Power with
respect to the pre-occupation acts of protected persons and of nationals of the Occupying Power,
who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State.
11.11.7.1 Pre-Occupation Acts of Protected Persons. Protected persons shall not
be arrested, prosecuted, or convicted by the Occupying Power for acts committed or opinions
222 SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the
Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 23 (Jun. 27, 1955)
(“Adoption of this limitation upon the death penalty was due to the efforts of a number of countries, some of which
had experienced whole-sale imposition of this extreme measure under military occupation, and others of which have
abolished the death penalty in their legal systems. Our own Government, while willing to agree not to impose it
except in the three categories of cases listed in article 68, was unable to accept the proviso further limiting its use.
Along with the United Kingdom, we took the position that an occupying power would be unable to protect its own
forces adequately against the activities of illegal combatants unless it retained the power to take drastic legal action
to meet the situation. From a practical standpoint, moreover, the limitation in article 68 would permit an enemy on
the point of being dislodged from the national territory to repeal a death penalty law previously applicable, thus
opening the way to all kinds of subversive activities against the occupant which would not be punishable by
death.”).
223 GC art. 68 (“The death penalty may not be pronounced against a protected person unless the attention of the court
has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not
bound to it by any duty of allegiance.”). Compare § 9.28.6 (Death Sentences); § 10.29.5 (Death Sentences).
224 GC art. 68 (“In any case, the death penalty may not be pronounced against a protected person who was under
eighteen years of age at the time of the offense.”).
225 For example, Coalition Provision Authority Order No. 7, Penal Code, §3(1) (Jun. 10, 2003) (“Capital
punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an
offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for
in the Penal Code.”).
226 GC art. 69 (“In all cases, the duration of the period during which a protected person accused of an offence is
under arrest awaiting trial or punishment shall be deducted from any period of imprisonment awarded.”).
775
expressed before the occupation, or during a temporary interruption thereof, with the exception
of breaches of the laws and customs of war.227
11.11.7.2 Protection of Nationals of the Occupying Power Who, Before the
Outbreak of Hostilities, Have Sought Refuge in the Territory of the Occupied State. Nationals of
the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory
of the occupied State, shall not be arrested, prosecuted, convicted, or deported from the occupied
territory, except for offenses committed after the outbreak of hostilities, or for offenses under
common law committed before the outbreak of hostilities that, according to the law of the
occupied State, would have justified extradition in time of peace.228
Thus, although protected persons may not be forcibly transferred or deported to another
country,229 nationals of the Occupying Power may be involuntarily removed under certain
circumstances.230
This rule is an exception to the general principle that a State’s own nationals are excluded
from the protection of the GC.231
11.11.8 Disposition of Accused and Convicted Protected Persons Upon the Close of
Occupation. Protected persons who have been accused of offenses or convicted by courts in
occupied territory shall be handed over at the close of occupation, with the relevant records, to
the authorities of the liberated territory.232
Pending their transfer to such authorities, such protected persons continue to be protected
by the GC because protected persons whose release, repatriation, or re-establishment may take
place after such dates continue to benefit from the protections of the GC.233
227 GC art. 70 (“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.”).
228 GC art. 70 (“Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the
territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory,
except for offences committed after the outbreak of hostilities, or for offences under common law committed before
the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time
of peace.”).
229 Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).
230 GC COMMENTARY 351-52 (“When criminals again fall into the hands of their State of origin, as a result of the
occupation of the territory in which they are living, they must answer for their actions; the occupying authorities
may therefore arrest them, take them back to their home country and bring them before its courts, provided the law
of the occupied State would have justified their extradition in time of peace.”).
231 Refer to § 10.3.3.1 (A State’s Own Nationals).
232 GC art. 77 (“Protected persons who have been accused of offenses or convicted by the courts in occupied
territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated
territory.”).
233 Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).
776
The practical arrangements for the handing over of such protected persons will depend on
the circumstances, including whether the liberation of occupied territory is accompanied by
fighting and whether the local administration is able to function.234
If occupying forces will remain in occupied territory after the end of occupation, it is
permissible, with the consent of the formerly occupied State, for the occupying forces to retain
custody, in the formerly occupied territory, of protected persons accused or convicted of
offenses.
11.12 MOVEMENT OF PERSONS IN OCCUPIED TERRITORY
11.12.1 Authority of the Occupying Power to Restrict Freedom of Movement. As a
general matter, the Occupying Power assumes the authority of the State whose territory is
occupied in controlling the movement of persons within the occupied territory, as well as the
movement of persons entering and exiting occupied territory. For example, private persons,
members of non-governmental organizations, or representatives of foreign States or international
organizations seeking to enter occupied territory generally would not be able to do so without
authorization from the Occupying Power.
The Occupying Power may withdraw from individuals the right to change their residence,
restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration and
immigration by protected persons who are nationals of the State whose territory is occupied, and
require that all individuals carry identification documents.235
11.12.2 Departure of Protected Persons Who Are Not Nationals of the State Whose
Territory Is Occupied. Protected persons who are not nationals of the State whose territory is
occupied may avail themselves of the right to leave occupied territory subject to the provisions
of Article 35 of the GC, and decisions thereon shall be taken according to the procedure that the
Occupying Power shall establish in accordance with the Article 35 of the GC.236
Article 35 of the GC sets forth rules regarding the departure of protected persons from the
home territory of a belligerent State and provides protected persons with a right to depart. But,
Article 35 allows a belligerent to prevent such departure if such departure is contrary to the
belligerent’s national interests, and Article 35 specifies certain procedural requirements.237
234 GC COMMENTARY 367 (“The Convention does not lay down any rules concerning the practical arrangements for
handing over detainees, because they will depend on circumstances and on whether the liberation of the occupied
territory is accompanied by fighting or not, and whether the local administration has been able to continue to
function or not.”).
235 1956 FM 27-10 (Change No. 1 1976) ¶375 (“The occupant may withdraw from individuals the right to change
their residence, restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration and
immigration (but see GC art. 48; par. 381 herein), and require that all individuals carry identification documents.”).
236 GC art. 48 (“Protected persons who are not nationals of the Power whose territory is occupied, may avail
themselves of the right to leave the territory subject to the provisions of Article 35, and decisions thereon shall be
taken according to the procedure which the Occupying Power shall establish in accordance with the said Article.”).
237 Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory).
777
Thus, for example, an Occupying Power may prevent the departure of protected persons
who are not nationals of the State whose territory is occupied if such departure is contrary to the
Occupying Power’s national interests. The Occupying Power must comply with the
requirements of Article 35 of the GC if it does so (e.g., providing for the reconsideration of its
refusal of permission to depart by an appropriate court or administrative board).238
11.12.3 Prohibition Against Forcible Transfers and Deportations. Individual or mass
forcible transfers, as well as deportations of protected persons from occupied territory to the
territory of the Occupying Power, or of any other country, occupied or not, are prohibited,
regardless of their motive.239
The unlawful deportation or transfer of protected persons in violation of this rule
constitutes a grave breach of the GC.240
11.12.3.1 Exception for Certain Transfers and Evacuations. Nevertheless, the
Occupying Power may undertake total or partial evacuation of a given area if required for the
security of the population or for imperative military reasons. Such evacuations may not involve
the displacement of protected persons outside the bounds of the occupied territory except when,
for material reasons, it is impossible to avoid such displacement. Persons thus evacuated shall be
transferred back to their homes as soon as hostilities in the area in question have ceased.241
For example, in some cases, the whole of occupied territory, such as an island, may be
dangerous, and it may be safer for the protected person to be transferred from occupied
territory.242
The Occupying Power undertaking such transfers or evacuations shall ensure, to the
greatest practicable extent:
(1) that proper accommodation is provided to receive the protected
238 GC COMMENTARY 277 (“For the procedure to be followed, Article 48 refers expressly to Article 35. Persons
who wish to leave the occupied territory therefore enjoy the same safeguards as protected persons living in the
territory of a party to the conflict, i.e. they will have the right to appeal to a court or administrative board and to ask
for a Protecting Power to intervene. On the other hand, under paragraph 1 of Article 35, the Occupying Power is
entitled to object to the departure of a protected person when its national interests make this absolutely necessary.”).
239 GC art. 49 (“Individual or mass forcible transfers, as well as deportations of protected persons from occupied
territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited,
regardless of their motive.”).
240 Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).
241 GC art. 49 (“Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the
security of the population or imperative military reasons so demand. Such evacuations may not involve the
displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is
impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased.”).
242 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 759 (“As regards the proposed
suppression of the words ‘except in cases of physical necessity’, there were cases where, owing to the limited size of
the territory, it was physically impossible to evacuate the population otherwise than to places outside the occupied
territory. That was the case, for example, in the islands of Wake and Guam, where the whole of the territory could
be considered as dangerous.”).
778
persons; (2) that evacuations or transfers are effected with satisfactory conditions of hygiene,
health, safety, and nutrition; and (3) that members of the same family are not separated.243
11.12.3.2 Transfer Prohibition Only Applicable to Protected Persons. Persons in
occupied territory who do not receive protected person status under the GC are not subject to this
prohibition on forcible transfers.244 For example, POWs may be transferred from occupied
territory to POW camps in the home territory of a belligerent.245 Similarly, a person who is not
entitled to protected person status, such as a national of a neutral or non-belligerent State who
travels to an occupied State to fight the Occupying Power, would not be covered by this
prohibition.246
11.12.3.3 Notification of Transfers and Evacuations to the Protecting Power. The
Protecting Power shall be informed of any transfers and evacuations as soon as they have taken
place.247
11.12.3.4 Voluntary Transfers Not Prohibited. Only forcible transfers are
prohibited; voluntary transfers from occupied territory, such as voluntary transfers of persons
belonging to a minority group that had been persecuted by the occupied State, would not be
prohibited.248
11.12.4 General Prohibition Against Detaining Protected Persons in Dangerous Areas.
The Occupying Power shall not detain protected persons in an area particularly exposed to the
dangers of war unless the security of the population or imperative military reasons so demand.249
243 GC art. 49 (“The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest
practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are
effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are
not separated.”).
244 Refer to § 10.3.2 (Persons Who Receive Protected Person Status Under the GC); § 10.3.3 (Categories of
Nationals Specifically Excluded From the Definition of Protected Person Under the GC).
245 Refer to § 9.11.3.3 (Location Outside the Theater of Military Operations).
246 Refer to § 10.3.2.1 (“Find Themselves”).
247 GC art. 49 (“The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken
place.”). Consider AP I art. 78 (“Any such evacuation [of children] shall be supervised by the Protecting Power in
agreement with the Parties concerned, namely the Party arranging the evacuation, the Party receiving the children
and any Parties whose nationals are being evacuated.”).
248 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 827 (“Although there was general
unanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of
Article 45 caused some trouble in view of the difficulty in reconciling exactly the ideas expressed with the various
terms in French, English and Russian. In the end the Committee have decided on a wording which prohibits
individual or mass forcible removals as well as deportations of protected persons from occupied territory to any
other country, but which permits voluntary transfers.”). See also id. at 759 (“Mr. CLATTENBURG (United States of
America) believed that the addition (suggested by the Soviet Delegation) of the words ‘any other transfer’ would
have hampered the evacuation of the religious and political minorities which the Allies, on entering Germany, had
discovered in labour and concentration camps.”).
249 GC art. 49 (“The Occupying Power shall not detain protected persons in an area particularly exposed to the
dangers of war unless the security of the population or imperative military reasons so demand.”). Consider AP I art.
779
11.12.5 Prohibition Against Deporting or Transferring the Occupied State’s Civilian
Population Into Occupied Territory. The Occupying Power shall not deport or transfer parts of
its own civilian population into the territory it occupies.250
11.13 PROTECTION OF CHILDREN IN OCCUPIED TERRITORY
Article 50 of the GC provides for certain duties of an Occupying Power with respect to
children in occupied territory. “Children” for the purposes of Article 50 of the GC and its
obligations with respect to the protection of children in occupied territory may be understood
generally to refer to children under fifteen years of age.251
Other duties that are not specific to occupied territory exist with regard to children.252
11.13.1 Obligation With Respect to the Care and Education of Children. The Occupying
Power shall, with the cooperation of the national and local authorities, facilitate the proper
working of all institutions devoted to the care and education of children.253 This obligation goes
beyond merely not interfering with such institutions, but also includes the affirmative duty to
support them when the responsible authorities of the country fail to do so.254
Should the local institutions be inadequate for the purpose, the Occupying Power shall
make arrangements for the maintenance and education - if possible, by persons of their own
78 (“In each case [of the evacuation of children], all Parties to the conflict shall take all feasible precautions to avoid
endangering the evacuation.”).
250 GC art. 49 (“The Occupying Power shall not deport or transfer parts of its own civilian populations into the
territory it occupies.”).
251 GC COMMENTARY 285 (“What should the word ‘children’ be considered to mean for the purposes of Article 50?
Although the conception of ‘children’ has an important place in the Convention there is, as has already been pointed
out, no general definition of the word. On the other hand the Convention has fixed various age limits in the
provisions prescribing preferential treatment for children: fifteen years of age, in Articles 14 (hospital and safety
zones), 23 (consignment of relief supplies), 24 and 38 (5) (measures relating to child welfare); twelve years of age in
Article 24, paragraph 3 (identification); and, as will be seen, eighteen years of age in Articles 51, paragraph 2
(compulsory labour) and 68, paragraph 4 (death penalty). Article 50, unlike those just mentioned, does not specify
any age limit for the children to whom it refers, except in the last paragraph. Since, however, the establishments and
institutions which paragraph 1 is intended to protect are generally for children and young people up to the age of
fifteen, that appears to be a reasonable upper limit and might therefore serve here as a criterion. The application of
Article 50, however, cannot depend on any formal and often too rigid rule; its application must be governed by the
degree of development of the physical and mental faculties of the persons concerned; it may therefore be applied to
young people until such time as they attain their majority. The meaning given to the term ‘children’ will also, of
course, depend on the legislation of the occupied country, particularly in respect of identification.”).
252 Refer to § 4.20 (Children).
253 GC art. 50 (“The Occupying Power shall, with the cooperation of the national and local authorities, facilitate the
proper working of all institutions devoted to the care and education of children.”).
254 GC COMMENTARY 286 (“The Occupying Powers must, with the co-operation of the national and local
authorities, facilitate the proper working of children's institutions. That means that the occupying authorities are
bound not only to avoid interfering with their activities, but also to support them actively and even encourage them
if the responsible authorities of the country fail in their duty.”).
780
nationality, language, and religion - of children who are orphaned or separated from their parents
as a result of the war, and who cannot be adequately cared for by a near relative or friend.255
11.13.2 Obligation With Respect to the Identification of Children. The Occupying Power
shall take all necessary steps to facilitate the identification of children and the registration of
their parentage.256
A special section of the National Protected Person Information Bureau set up in
accordance with Article 136 of the GC shall be responsible for taking all necessary steps to
identify children whose identity is in doubt.257
11.13.3 Prohibition Against Changing the Personal Status of Children or Enlisting Them.
The Occupying Power may not, in any case, change the personal status of children, nor enlist
them in formations or organizations subordinate to it.258
11.13.4 Obligation Not to Hinder Preferential Measures for Children and Mothers. The
Occupying Power shall not hinder the application of any preferential measures in regard to food,
medical care, and protection against the effects of war that may have been adopted prior to the
occupation in favor of children under fifteen years, expectant mothers, and mothers of children
under seven years.259
11.14 FOOD AND MEDICAL SUPPLIES FOR THE CIVILIAN POPULATION
11.14.1 Duty of Ensuring the Food and Medical Supplies for the Population. To the
fullest extent of the means available to it, the Occupying Power has the duty of ensuring the
sufficiency of food and medical supplies for the population; it should, in particular, bring in the
necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory
255 GC art. 50 (“Should the local institutions be inadequate for the purpose, the Occupying Power shall make
arrangements for the maintenance and education, if possible by persons of their own nationality, language and
religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be
adequately cared for by a near relative or friend.”).
256 GC art. 50 (“The Occupying Power shall take all necessary steps to facilitate the identification of children and the
registration of their parentage.”).
257 Refer to § 10.31.2.5 (Special Section for the Identification of Children in Occupied Territory).
258 GC art. 50 (“The Occupying Power shall take all necessary steps to facilitate the identification of children and the
registration of their parentage. It may not, in any case, change their personal status, nor enlist them in formations or
organizations subordinate to it.”).
259 GC art. 50 (“The Occupying Power shall not hinder the application of any preferential measures in regard to
food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in
favour of children under fifteen years, expectant mothers, and mothers of children under seven years.”).
781
are inadequate.260 Other articles may be understood to include all urgently required goods that
may be essential to the “life of the territory.”261
11.14.2 Limitation on Requisition of Food and Medical Supplies. The Occupying Power
may not requisition foodstuffs, articles, or medical supplies available in the occupied territory,
except for use by the occupation forces and administration personnel, and then only if the
requirements of the civilian population have been taken into account.262 Subject to the
provisions of other international conventions, the Occupying Power shall make arrangements to
ensure that fair value is paid for any requisitioned goods.263
11.14.3 Verification of the State of Food and Medical Supplies by the Protecting Power.
The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical
supplies in occupied territories, except where temporary restrictions are made necessary by
imperative military requirements.264
11.15 PUBLIC HEALTH AND HYGIENE
11.15.1 General Duty With Respect to Public Health. To the fullest extent of the means
available to it, the Occupying Power has the duty of ensuring and maintaining, with the
cooperation of national and local authorities, medical and hospital establishments, medical
services, and public health and hygiene in the occupied territory, with particular reference to the
adoption and application of the prophylactic and preventive measures necessary to combat the
260 GC art. 55 (“To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the
food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores
and other articles if the resources of the occupied territory are inadequate.”).
261 1956 FM 27-10 (Change No. 1 1976) ¶384 (“b. Other Articles To Be Supplied. The other articles which the
occupant is required to provide under the above provision include all urgently required, goods which may be
essential to the life of the territory.”). See also GC COMMENTARY 309-10 (“Article 55 is concerned exclusively with
the question of food and medical supplies for the population of an occupied territory. … Supplies for the population
are not limited to food, but include medical supplies and any article necessary to support life.”).
262 GC art. 55 (“The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the
occupied territory, except for use by the occupation forces and administration personnel, and then only if the
requirements of the civilian population have been taken into account.”). Consider AP I art. 14 (“Limitations on
requisition of civilian medical units - … 2. The Occupying Power shall not, therefore, requisition civilian medical
units, their equipment, their materiel or the services of their personnel, so long as these resources are necessary for
the provision of adequate medical services for the civilian population and for the continuing medical care of any
wounded and sick already under treatment. 3. Provided that the general rule in paragraph 2 continues to be observed,
the Occupying Power may requisition the said resources, subject to the following particular conditions: (a) that the
resources necessary for the adequate and immediate medical treatment of the wounded and sick members of the
armed forces of the Occupying Power or of prisoners of war; (b) that the requisition continues only while such
necessity exists; and (c) that immediate arrangements are made to ensure that the medical needs of the civilian
population, as well as those of any wounded and sick under treatment who are affected by the requisition, continue
to be satisfied.”).
263 GC art. 55 (“Subject to the provisions of other international Conventions, the Occupying Power shall make
arrangements to ensure that fair value is paid for any requisitioned goods.”).
264 GC art. 55 (“The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical
supplies in occupied territories, except where temporary restrictions are made necessary by imperative military
requirements.”).
782
spread of contagious diseases and epidemics.265 The responsibility for providing and
maintaining health services falls primarily on the national and local authorities, but where such
authorities are unable to provide adequately for the health needs of the civilian population, the
Occupying Power then has the duty described above.266
11.15.2 Respect for the Work of Civilian Medical Personnel. Medical personnel of all
categories must be allowed to carry out their duties.267 “Medical personnel of all categories”
includes a wide range of persons engaged in medical work.268 It includes even those who are not
affiliated with civilian hospitals who qualify for protection under Article 20 of the GC.269
11.15.3 Recognition of New Hospitals, Medical Personnel, and Transports. If new
hospitals are set up in occupied territory and if the competent organs of the occupied State are
not operating there, the occupying authorities must, if necessary, grant them the recognition
provided for in Article 18 of the GC.270 This recognition allows the civilian hospitals to show
that they are civilian hospitals and that the buildings that they occupy are not used for any
purpose that would deprive these hospitals of protection.271 In similar circumstances, the
occupying authorities must also grant recognition to hospital personnel and transport vehicles
265 GC art. 56 (“To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and
maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and
services, public health and hygiene in the occupied territory, with particular reference to the adoption and
application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and
epidemics.”).
266 GC COMMENTARY 313-14 (“[T]here can be no question of making the Occupying Power alone responsible for
the whole burden of organizing hospitals and health services and taking measures to control epidemics. The task is
above all one for the competent services of the occupied country itself. It is possible that in certain cases the
national authorities will be perfectly well able to look after the health of the population; in such cases the Occupying
Power will not have to intervene; it will merely avoid hampering the work of the organizations responsible for the
task. In most cases, however, the invading forces will be occupying a country suffering severely from the effects of
war; hospitals and medical services will be disorganized, without the necessary supplies and quite unable to meet the
needs of the population. The Occupying Power must then, with the co-operation of the authorities and to the fullest
extent of the means available to it, ensure that hospital and medical services can work properly and continue to do
so.”).
267 GC art. 56 (“Medical personnel of all categories shall be allowed to carry out their duties.”).
268 GC COMMENTARY 314 (“‘Medical personnel of all categories’ should be taken to mean all people engaged in a
branch of medical work: doctors, surgeons, dentists, pharmacists, midwives, medical orderlies and nurses, stretcher
bearers, ambulance drivers, etc., whether such persons are or are not attached to a hospital. On that point the
provision differs from Article 20 of the Convention, which refers only to hospital staff, who are alone authorized to
wear the armlet bearing the red cross emblem.”).
269 Refer to § 7.17.4 (Protection of Civilian Hospital Personnel).
270 GC art. 56 (“If new hospitals are set up in occupied territory and if the competent organs of the occupied State
are not operating there, the occupying authorities shall, if necessary, grant them the recognition provided for in
Article 18. In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel and
transport vehicles under the provisions of Articles 20 and 21.”).
271 Refer to § 7.17.2.1 (State-Issued Certificates for Civilian Hospitals).
783
under the provisions of Articles 20 and 21 of the GC.272 This recognition also allows such
personnel and vehicles to display their entitlement to protection.273
11.15.4 Consideration of Cultural Traditions of the Population in Adopting Public Health
Measures. In adopting measures of health and hygiene, and in their implementation, the
Occupying Power must take into consideration the moral and ethical susceptibilities of the
population of the occupied territory.274 The Occupying Power should respect the sentiments and
traditions of the population, and should not introduce new methods if they are liable to cause
deep disquiet among the population.275
11.15.5 Requisition of Civilian Hospitals. The Occupying Power may requisition civilian
hospitals only temporarily and only in cases of urgent necessity for the care of military wounded
and sick, and then on the condition that suitable arrangements are made in due time for the care
and treatment of the hospital’s current patients, and for the future needs of the civilian population
for hospital accommodation. The material and stores of civilian hospitals cannot be
requisitioned so long as they are necessary for the needs of the civilian population.276
If the requisition of medical supplies is required for the occupying force, they must take
the needs of the civilian population into account and resupply the materials as soon as
possible.277
11.16 SPIRITUAL ASSISTANCE
The Occupying Power shall permit ministers of religion to give spiritual assistance to the
members of their religious communities. The Occupying Power shall also accept consignments
of books and articles required for religious needs and shall facilitate their distribution in occupied
territory.278
272 GC art. 56 (“In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel
and transport vehicles under the provisions of Articles 20 and 21.”).
273 Refer to § 7.17.4 (Protection of Civilian Hospital Personnel); § 7.18 (Land and Sea Civilian Hospital Convoys).
274 GC art. 56 (“In adopting measures of health and hygiene and in their implementation, the Occupying Power shall
take into consideration the moral and ethical susceptibilities of the population of the occupied territory.”).
275 GC COMMENTARY 315 (“The purpose of this provision is to ensure respect for sentiments and traditions, which
must not be disregarded. The occupation must not involve the sudden introduction of new methods, if they are
liable to cause deep disquiet among the population.”).
276 GC art. 57 (“The Occupying Power may requisition civilian hospitals only temporarily and only in cases of
urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are
made in due time for the care and treatment of patients and the needs of the civilian population for hospital
accommodation. The material and stores of civilian hospitals cannot be requisitioned so long as they are necessary
for the needs of the civilian population.”).
277 GC COMMENTARY 318 (“When so doing, it will take the needs of the population into account and it will replace
the material used as soon as possible, usually by importing medical supplies in accordance with Article 55.”).
278 GC art. 58 (“The Occupying Power shall permit ministers of religion to give spiritual assistance to the members
of their religious communities. The Occupying Power shall also accept consignments of books and articles required
for religious needs and shall facilitate their distribution in occupied territory.”).
784
Religious assistance addressed by the GC, however, does not include activities that are a
pretext for political agitation against the Occupying Power.279
11.17 RELIEF EFFORTS AND CONSIGNMENTS
Special rules address relief efforts in occupied territory. Other rules address relief efforts
outside the context of occupation.280
11.17.1 Collective Relief. If the whole or part of the population of an occupied territory
is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the
affected population, and shall facilitate them by all the means at its disposal. Such schemes,
which may be undertaken either by States or by impartial humanitarian organizations such as the
ICRC, shall consist, in particular, of the provision of consignments of foodstuffs, medical
supplies, and clothing.281
All Parties to the GC shall permit the free passage of these consignments and shall
guarantee their protection.282
A State granting free passage to consignments on their way to territory occupied by an
adverse party to the conflict shall, however, have the right to search the consignments, to
regulate their passage according to prescribed times and routes, and to be reasonably satisfied
(through the Protecting Power) that these consignments are to be used for the relief of the needy
population, and are not to be used for the benefit of the Occupying Power.283
11.17.1.1 Diversion of Relief Consignments. The Occupying Power shall in no
way whatsoever divert relief consignments from the purpose for which they are intended, except
279 GC COMMENTARY 318 (“[R]eligious assistance must in no case serve as a pretext for political agitation against
the Occupying Power. Should occasion arise, the Occupying Power would be entitled to take appropriate action,
since the provision under discussion authorizes only spiritual assistance, and not activities which have nothing to do
with religion.”).
280 Refer to § 5.19.3 (Passage of Relief Consignments); § 8.10.1 (Receipt of Individual or Collective Relief); § 9.20
(POW Correspondence and Relief Shipments); § 10.23 (Internee Correspondence and Relief Shipments).
281 GC art. 59 (“If the whole or part of the population of an occupied territory is inadequately supplied, the
Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the
means at its disposal. Such schemes, which may be undertaken either by States or by impartial humanitarian
organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of
consignments of foodstuffs, medical supplies and clothing. All Contracting Parties shall permit the free passage of
these consignments and shall guarantee their protection.”).
282 GC art. 59 (“All Contracting Parties shall permit the free passage of these consignments and shall guarantee their
protection.”).
283 GC art. 59 (“A Power granting free passage to consignments on their way to territory occupied by an adverse
Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to
prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are
to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.”).
785
in cases of urgent necessity, in the interests of the population of the occupied territory, and with
the consent of the Protecting Power.284
11.17.1.2 Distribution of Collective Relief Consignments. The distribution of
collective relief consignments referred to in Articles 59 and 60 of the GC shall be carried out
with the cooperation and under the supervision of the Protecting Power. This duty may also be
delegated, by agreement between the Occupying Power and the Protecting Power, to a neutral
State, the ICRC, or any other impartial humanitarian body.285
The Occupying Power shall facilitate the rapid distribution of these consignments.286 For
example, it may be necessary for the occupation authorities to remove administrative
impediments (e.g., granting permits) to relief organizations distributing consignments.287
11.17.1.3 Charges, Taxes, and Customs Duties on Collective Relief Consignments
for Occupied Territories. Collective relief consignments referred to in Articles 59 and 60 of the
GC shall be exempt in occupied territory from all charges, taxes, or customs duties unless such
charges, taxes, or customs duties are necessary in the interests of the economy of the territory.288
All Parties to the GC shall endeavor to permit the transit and transport, free of charge, of such
relief consignments on their way to occupied territories.289
11.17.2 Individual Relief Consignments. Subject to imperative reasons of security,
protected persons in occupied territories shall be permitted to receive individual relief
consignments sent to them.290
An individual relief consignment is a shipment that is addressed to a particular person.291
284 GC art. 60 (“The Occupying Power shall in no way whatsoever divert relief consignments from the purpose for
which they are intended, except in cases of urgent necessity, in the interests of the population of the occupied
territory and with the consent of the Protecting Power.”).
285 GC art. 61 (“The distribution of the relief consignments referred to in the foregoing Articles shall be carried out
with the cooperation and under the supervision of the Protecting Power. This duty may also be delegated, by
agreement between the Occupying Power and the Protecting Power, to a neutral Power, to the International
Committee of the Red Cross or to any other impartial humanitarian body.”).
286 GC art. 61 (“The Occupying Power shall facilitate the rapid distribution of these consignments.”).
287 GC COMMENTARY 328 (“The second sentence in paragraph 2 says that the Occupying Power is to facilitate the
rapid distribution of the consignments. The effect of a relief scheme will depend above all on the time the
consignments take to reach the recipients; it is therefore important for the occupation authorities to take all necessary
steps to facilitate their despatch and distribution (cutting out red tape, making transport available, granting permits
allowing freedom of movement, facilities of all kinds for the staff of the distributing and supervising bodies, etc.).”).
288 GC art. 61 (“Such consignments shall be exempt in occupied territory from all charges, taxes or customs duties
unless these are necessary in the interests of the economy of the territory.”).
289 GC art. 61 (“All Contracting Parties shall endeavour to permit the transit and transport, free of charge, of such
relief consignments on their way to occupied territories.”).
290 GC art. 62 (“Subject to imperative reasons of security, protected persons in occupied territories shall be permitted
to receive the individual relief consignments sent to them.”).
786
The occupation authorities may limit or temporarily forbid the entry of individual relief
supplies for imperative reasons of security, such as if the volume of relief consignments prevents
security screening.292
11.17.3 Continuing Responsibilities of the Occupying Power. Relief consignments shall
in no way relieve the Occupying Power of any of its responsibilities under Articles 55, 56, and
59 of the GC.293 The responsibilities of the Occupying Power under Articles 55, 56, and 59 of
the GC relate to ensuring the provision of food, medical supplies, and medical services to the
population.294
11.17.4 National Red Cross or Red Crescent Societies and Other Relief Organizations.
Subject to temporary and exceptional measures imposed for urgent reasons of security by the
Occupying Power:
• recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able
to pursue their activities in accordance with Red Cross principles, as prescribed by the
International Red Cross Conferences. Other relief societies shall be permitted to continue
their humanitarian activities under similar conditions;
• the Occupying Power may not require any changes in the personnel or structure of these
societies that would prejudice these activities.295
The same principles shall apply to the activities and personnel of special organizations of
a non-military character that already exist or that may be established for the purpose of ensuring
291 GC COMMENTARY 329 (“Unlike the three previous Articles which refer to relief supplies for a group of protected
persons (collective consignments), Article 62 deals with consignments addressed to individuals (individual
consignments).”).
292 GC COMMENTARY 329 (“[T]he occupation authorities have the right to refuse to receive individual relief
consignments if imperative reasons of security so demand. A similar reservation in regard to collective relief was
put forward during the preparatory work on Article 59, but was not adopted. The reservation was kept in Article 62
in order that efficient verification should not be rendered impossible by the arrival of huge quantities of individual
parcels. Under such circumstances the Occupying Power could avoid importing articles detrimental to its security
by limiting or temporarily forbidding the entry of individual relief supplies.”).
293 GC art. 60 (“Relief consignments shall in no way relieve the Occupying Power of any of its responsibilities under
Articles 55, 56 and 59.”).
294 Refer to § 11.14 (Food and Medical Supplies for the Civilian Population); § 11.15 (Public Health and Hygiene);
§ 11.17.1 (Collective Relief).
295 GC art. 63 (“Subject to temporary and exceptional measures imposed for urgent reasons of security by the
Occupying Power: (a) recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able to
pursue their activities in accordance with Red Cross principles, as defined by the International Red Cross
Conferences. Other relief societies shall be permitted to continue their humanitarian activities under similar
conditions; (b) the Occupying Power may not require any changes in the personnel or structure of these societies,
which would prejudice the aforesaid activities.”).
787
the living conditions of the civilian population by the maintenance of the essential public utility
services, by the distribution of relief, and by the organization of rescues.296
11.18 ENEMY PROPERTY DURING OCCUPATION
Pillage is prohibited. Enemy property in occupied territory may not be seized or
destroyed unless imperatively demanded by the necessities of war. The Occupying Power may
take certain control measures with respect to property in occupied territory. Other rules apply to
the treatment of public enemy property and private enemy property in occupied territory.
11.18.1
Prohibition Against Pillage in Occupied Territory. Pillage is forbidden.297
In
addition to this specific prohibition in the context of occupied territory, pillage is prohibited as a
general matter.298
11.18.2 Seizure or Destruction of Property During Occupation - Application of the
Military Necessity Standard. The general rule that enemy property may not be seized or
destroyed unless imperatively demanded by the necessities of war also applies to property during
the occupation of enemy territory.299 In particular, any destruction by the Occupying Power of
real (immovable) or personal (movable) property belonging individually or collectively to
private persons, to the State of the occupied territory, to other public authorities, or to social or
cooperative organizations, is prohibited, except where such destruction is rendered absolutely
necessary by military operations.300
11.18.2.1 Assessment of Military Necessity for Seizure or Destruction. The
evaluation of whether destruction of property is militarily necessary in the context of occupation
is undertaken by applying the standards that also are applied in the context of combat
operations.301 For example, the evaluation of whether the destruction of property is militarily
necessary is made by the responsible commander or other authority of the Occupying Power.302
296 GC art. 63 (“The same principles shall apply to the activities and personnel of special organizations of a non-
military character, which already exist or which may be established, for the purpose of ensuring the living conditions
of the civilian population by the maintenance of the essential public utility services, by the distribution of relief and
by the organization of rescues.”).
297 HAGUE IV REG. art. 47 (“Pillage is formally forbidden.”).
298 Refer to § 5.17.4 (Pillage Prohibited).
299 Refer to § 5.17.2 (Enemy Property - Military Necessity Standard).
300 GC art. 53 (“Any destruction by the Occupying Power of real or personal property belonging individually or
collectively to private persons, or to the State, or to other public authorities, or to social or cooperative
organizations, is prohibited, except where such destruction is rendered absolutely necessary by military
operations.”).
301 Refer to § 5.17.2 (Enemy Property - Military Necessity Standard).
302 GC COMMENTARY 302 (“Furthermore, it will be for the Occupying Power to judge the importance of such
military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the
proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the
Occupying Power to circumvent the prohibition set forth in the Convention. The Occupying Power must therefore
try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying
authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage
done.”).
788
However, such assessment must be made in good faith based on the information available at the
time.303
11.18.2.2 Temporary Possession for Direct Military Use. An Occupying Power
may always take temporary possession of enemy property (real or personal, and public or
private) where required for direct military use in military operations. In the case of private
property, an Occupying Power, where possible, should requisition the property and offer
compensation to the owner.304
11.18.2.3 Capture or Seizure and Vesting of Title in the Occupying Power. In the
case of real (immovable) property that is captured or seized, the Occupying Power may use such
property for the duration of the occupation but does not take title to the property.305
Public property captured or seized from the enemy, as well as private property validly
captured on the battlefield and abandoned property, is the property of the capturing State.306
Valid capture or seizure of property requires both an intent to take such action and a
physical act of capture or seizure. The mere presence within occupied territory of property that
is subject to appropriation under international law does not operate to vest title thereto in the
Occupying Power.307
11.18.2.4 Seizure or Destruction of Submarine Cables Connecting an Occupied
Territory With a Neutral Territory. Submarine cables connecting an occupied territory with a
neutral territory shall not be seized or destroyed except in the case of absolute necessity. Such
cables must likewise be restored and compensation fixed when peace is made.308
This rule applies only to activities on land and does not deal with seizure or destruction of
cables in the open sea.309
303 Refer to § 5.4.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).
304 Refer to § 11.18.7 (Requisitions of Private Enemy Property).
305 Refer to § 11.18.5.1 (Public Real (Immovable) Property Susceptible of Direct Military Use); § 11.18.5.2 (Public
Real (Immovable) Property That Is Essentially of a Non-Military Nature).
306 1956 FM 27-10 (Change No. 1 1976) ¶396 (“Public property captured or seized from the enemy, as well as
private property validly captured on the battlefield and abandoned property, is property of the United States (see
U.S. Const., Art. I, sec. 8, cl. 11), and failure to turn over such property to the proper authorities or disposal thereof
for personal profit is a violation of Article 103 of the Uniform Code of Military Justice.”). Refer to § 5.17.3.2
(Ownership of Captured or Found Property on the Battlefield).
307 1956 FM 27-10 (Change No. 1 1976) ¶395 (“Valid capture or seizure of property requires both an intent to take
such action and a physical act of capture or seizure. The mere presence within occupied territory of property which
is subject to appropriation under international law does not operate to vest title thereto in the occupant.”).
308 HAGUE IV REG. art. 54 (“Submarine cables connecting an occupied territory with a neutral territory shall not be
seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed
when peace is made.”).
309 JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: III THE CONFERENCE OF 1907
13 (1921) (“Mr. Louis Renault observes that this amendment has reference only to what takes place on land, without
789
11.18.3 Property Control Measures. Public and private property within occupied territory
may be controlled by the Occupying Power to the degree necessary to prevent its use by or for
the benefit of hostile forces, or in a manner harmful to the Occupying Power.310 For example, in
the case of persons who have acted against the security of the Occupying Power, the Occupying
Power may freeze their accounts to prevent such funds from being used against the interests of
the Occupying Power.311
Conservators may be appointed to manage the property of absent persons (including
nationals of the United States and of friendly States) and of internees, property managed by such
persons, and property of persons whose activities are deemed to be prejudicial to the Occupying
Power. However, when the owners or managers of such property are again able to resume
control of their property and the risk of its hostile use no longer exists, it must be returned to
them.312
Measures of property control must not extend to confiscation of private property.313 For
example, if the Occupying Power controls a private business and earns a profit, the owner must
be indemnified.314
However, the authority of the Occupying Power to impose such controls does not limit its
power to seize or requisition property or take such other action with respect to it as may be
authorized by other provisions of law.315
11.18.4 Determination Whether Property Is Public or Private. The rules for the treatment
of enemy property may depend on whether the property is public or private.
touching the question of seizure or destruction of submarine cables in the open sea. The President thanks him for
having given the text an interpretation that leaves no room for doubt.”).
310 1956 FM 27-10 (Change No. 1 1976) ¶399 (“Property within occupied territory may be controlled by the
occupant to the degree necessary to prevent its use by or for the benefit of the hostile forces or in a manner harmful
to the occupant.”).
311 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“This control includes not only the steps mentioned
above in connection with central banks and commercial banks but covers such things as the freezing of accounts
where the owner of the funds in question has acted against the interests of the occupying power, control of large
cash deposits, control over safe deposit boxes, and, of course, the removal of personnel held to be undesirable from
the viewpoint of the occupant.”).
312 1956 FM 27-10 (Change No. 1 1976) ¶399 (“Conservators may be appointed to manage the property of absent
persons (including nationals of the United States and of friendly States) and of internees, property managed by such
persons, and property of persons whose activities are deemed to be prejudicial to the occupant. However, when the
owners or managers of such property are again able to resume control of their property and the risk of its hostile use
no longer exists, it must be returned to them.”).
313 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).
314 Refer to § 11.23.3 (Control of Business in Occupied Territory).
315 1956 FM 27-10 (Change No. 1 1976) ¶399 (“Measures of property control must not extend to confiscation.
However, the authority of the occupant to impose such controls does not limit its power to seize or requisition
property or take such other action with respect to it as may be authorized by other provisions of law.”).
790
For example, private property may not be confiscated, and there is an obligation to pay
compensation for requisitions of private property.316 On the other hand, public property
generally may be seized or captured without any obligation to pay compensation.317
11.18.4.1 Beneficial Ownership Test. Under modern conditions, the distinction
between public and private property is not always easy to draw. For the purpose of treatment of
property under military occupation, it is often necessary to look beyond strict legal title and to
ascertain the character of the property on the basis of the beneficial ownership thereof. Thus, for
example, trust funds, pension funds, and bank deposits generated by private persons are not to be
regarded as public property simply by reason of their being held by a State-owned bank.318
11.18.4.2 Property of Mixed Ownership. For the purpose of determining what
type of control the Occupying Power may exercise over property (by way of confiscation,
seizure, requisition, etc.), the most cogent evidence of public character is such a complete or
partial assumption by the State of the economic risk involved in the holding and management of
the property in question that the enemy State, rather than private individuals or corporations,
would be subjected to a substantial portion of the loss were the property to be appropriated for
the use of the Occupying Power.319 Should property that is ostensibly private be subjected to a
large measure of governmental control and management, or perform functions that are
essentially public, these facts would tend to indicate that the property should be regarded in
practice as public.320
If property that is appropriated by the Occupying Power is beneficially owned in part by
the enemy State and in part by private interests, the occupation authorities should compensate the
private owners to the extent of their interest. Such compensation should bear the same
relationship to the compensation that would be paid if the property were entirely privately
316 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory); § 11.18.7.3 (Prices
and Compensation for Requisitioned Articles and Services).
317 Refer to § 11.18.5 (Treatment of Enemy Public Property).
318 1956 FM 27-10 (Change No. 1 1976) ¶394a (“Beneficial Ownership. Under modern conditions, the distinction
between public and private property is not always easy to draw. For the purpose of treatment of property under
belligerent occupation, it is often necessary to look beyond strict legal title and to ascertain the character of the
property on the basis of the beneficial ownership thereof. Thus, for example, trust funds, pension funds, and bank
deposits generated by private persons are not to be regarded as public property simply by reason of their being held
by a State-owned bank.”).
319 1956 FM 27-10 (Change No. 1 1976) ¶394b (“Property of Mixed Ownership. For the purpose of determining
what type of control the occupant may exercise over property (by way of confiscation, seizure, requisition, etc.), the
most cogent evidence of public character is such a complete or partial assumption by the State of the economic risk
involved in the holding and management of the property in question that the State, rather than private individuals or
corporation, would be subjected to a substantial portion of the loss were the property to be appropriated for the use
of the occupant.”).
320 1956 FM 27-10 (Change No. 1 1976) ¶394b (“Should property which is ostensibly private be subjected to a large
measure of governmental control and management or perform functions which are essentially public, these facts
would tend to indicate that the property should be regarded in practice as public.”).
791
owned. The Occupying Power may take those measures it deems necessary to ensure that no
portion of the compensation paid on account of private interests accrues to the enemy State.321
11.18.4.3 Property of Unknown Ownership. If it is unknown whether certain
property is public or private, it should be treated as public property until its ownership is
ascertained.322
11.18.5 Treatment of Enemy Public Property. In general, an Occupying Power may
capture or seize the real (immovable) and personal (movable) property of the occupied State and
use it for military operations or the administration of the occupied territory. No compensation
needs to be paid to the occupied State for the use or taking of such property.
11.18.5.1 Public Real (Immovable) Property Susceptible of Direct Military Use.
Real property of the occupied State that is of direct military use, such as forts, arsenals,
dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military
facilities, may remain in the hands of the Occupying Power until the close of the hostilities, and
may be destroyed or damaged by the Occupying Power, if it deems it necessary to military
operations.323
11.18.5.2 Public Real (Immovable) Property That Is Essentially of a Non-Military
Nature. The Occupying Power shall be regarded only as administrator and usufructuary of
public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and
situated in the occupied territory. It must safeguard the capital of these properties, and
administer them in accordance with the rules of usufruct. 324 This real (immovable) property that
is essentially of a non-military nature may not be damaged or destroyed unless such destruction
is rendered absolutely necessary by military operations. 325
321 1956 FM 27-10 (Change No. 1 1976) ¶394b (“If property which is appropriated by the occupant is beneficially
owned in part by the State and in part by private interests, the occupation authorities should compensate the private
owners to the extent of their interest. Such compensation should bear the same relationship to the full compensation
which would be paid if the property were entirely privately owned as their interest bears to the total value of the
property concerned. The occupant may take what measures it deems necessary to assure that no portion of the
compensation paid on account of private interests accrues to the State.”).
322 1956 FM 27-10 (Change No. 1 1976) ¶394c (“Property of Unknown Ownership. If it is unknown whether certain
property is public or private, it should be treated as public property until its ownership is ascertained.”).
323 1956 FM 27-10 (Change No. 1 1976) ¶401 (“Real property of a State which is of direct military use, such as
forts, arsenals, dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military
facilities, remains in the hands of the occupant until the close of the war, and may be destroyed or damaged, if
deemed necessary to military operations.”).
324 HAGUE IV REG. art. 55 (“The occupying State shall be regarded only as administrator and usufructuary of public
buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied
country. It must safeguard the capital of these properties, and administer them in accordance with the rules of
usufruct.”).
325 1956 FM 27-10 (Change No. 1 1976) ¶402 (“Real property of the enemy State which is essentially of a non-
military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or
destroyed unless such destruction is rendered absolutely necessary by military operations (see Art. 63, GC; par. 393
herein).”). Refer to § 11.18.2 (Seizure or Destruction of Property During Occupation - Application of the Military
Necessity Standard).
792
The term usufruct means literally “to use the fruit.”326 The Occupying Power may use
and enjoy the benefits of public real (immovable) property belonging to an enemy State, but does
not have the right of sale or unqualified use of such property. As administrator or usufructuary,
the Occupying Power should not exercise its rights in such a wasteful and negligent manner as
seriously to impair the property’s value.327
The Occupying Power may, however, lease or utilize public lands or buildings, sell the
crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend
beyond the conclusion of the war.328
11.18.5.3 Public Personal (Movable) Property. An army of occupation may only
take possession of cash, funds, and realizable securities that are strictly the property of an enemy
State, depots of arms, means of transport, stores and supplies, and, generally, all personal
(movable) property belonging to the State that may be used for military operations.329
Thus, all personal (movable) property belonging to an enemy State susceptible of military
use may be taken possession of, and utilized for, the benefit of the Occupying Power. Under
modern conditions of warfare, a large proportion of State property may be regarded as capable of
being used for military purposes. However, personal (movable) property that is not susceptible
of military use must be respected and may not be appropriated.330
11.18.6 Treatment of Enemy Private Property. Private property may not be
confiscated.331
326 See DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 183 (Oct. 23, 1962) (“The term
‘usufruct’ means literally ‘to use the fruit.’ The occupant can therefore enjoy the benefits of public real property,
but he cannot interfere with the substantive rights still possessed by the displaced sovereign.”); Brigadier General
George B. Davis, Working Memoranda (Confidential for the United States Delegates): The Second Peace
Conference (Paragraph 2 of Programme), The Rules of War on Land, 43 (1907) (“In the meaning which has been
assigned to the term ‘usufruct’ in both the common and civil law, the usufructuary is entitled to the enjoyment of the
revenue so long as he preserves the substance or capital of which he appropriates and uses the usufruct. In its
application to the commanding general of occupied territory this means that, so long as he maintains the properties
thus unimpaired, he may apply the usufructuary revenue to the necessary expenses of the military occupation.”).
327 1956 FM 27-10 (Change No. 1 1976) ¶402 (“The occupant does not have the right of sale or unqualified use of
such property. As administrator or usufructuary he should not exercise his rights in such a wasteful, and negligent
manner as seriously to impair its value.”).
328 1956 FM 27-10 (Change No. 1 1976) ¶402 (“He may, however, lease or utilize public lands or buildings, sell the
crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond the
conclusion of the war.”).
329 HAGUE IV REG. art. 53 (“An army of occupation can only take possession of cash, funds, and realizable securities
which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally,
all movable property belonging to the State which may be used for military operations.”).
330 1956 FM 27-10 (Change No. 1 1976) ¶404 (“All movable property belonging to the State susceptible of military
use may be taken possession of and utilized for the benefit of the occupant’s government. Under modern conditions
of warfare, a large proportion of State property may be regarded as capable of being used for military purposes.
However, movable property which is not susceptible of military use must be respected and cannot be
appropriated.”).
331 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).
793
Private personal (movable) property susceptible to direct military use may be seized, with
a receipt to be given to allow for compensation to be paid at the conclusion of the war.332
Other private property may be subject to requisition, with payment in cash given as soon
as possible.333
Private property may be forfeited to the Occupying Power as a result of the valid
imposition of penalties.334 For example, a regulation closing a road for security reasons could
specify that, as a penalty, unauthorized private vehicles found on the road would be subject to
forfeiture without any compensation.335
11.18.6.1 Prohibition on Confiscation of Private Property in Occupied Territory.
Private property may not be confiscated.336
The prohibition against confiscation of private property extends not only to outright
taking in violation of the law of war, but also to any acts that, through the use of threats,
intimidation, or pressure, or by actual exploitation of the power of the Occupying Power,
permanently or temporarily deprive the owner of the use of such property without the owner’s
consent, or without authority under international law.337
The prohibition against confiscation of private property does not extend to takings by
way of contribution, requisition, or the valid imposition of penalties.338
332 Refer to § 11.18.6.2 (Seizure of Private Property Susceptible to Direct Military Use).
333 Refer to § 11.18.7 (Requisitions of Private Enemy Property).
334 See Philip C. Jessup, A Belligerent Occupant’s Power over Property, 38 AJIL 457, 459 (1944) (“3) Seizure and
confiscation. This case is not spelled out in the Hague Regulations but it is important. Private property of any kind
may be forfeited as a penalty. For example, a military regulation may forbid civilian carts to cross a certain bridge
under penalty of forfeiture of the cart and its contents and the draft animal. A regulation may forbid the sale of
intoxicating liquors under penalty of forfeiture of all stocks on hand. Especially in agrarian communities of rather
primitive economy, fines may be imposed in terms of farm produce, articles of native manufacture, or any other
commodities. Property taken by the occupant in this way is acquired with a clear title and may be used in any way
the occupant sees fit.”).
335 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 188 (“Private property may also have to be forfeited to an
occupant as a penalty: fines for a great number of minor offenses may be lawfully exacted in terms of products or
goods. For instance, vehicles found on closed roads may be confiscated, clothing over and above a stated maximum
might well be seized, and so on. A lawful occupant could utilize all property thus acquired in any manner he saw fit,
since he would have a clear title to the goods without having paid any compensation.”).
336 HAGUE IV REG. art. 46 (“Private property cannot be confiscated.”).
337 1956 FM 27-10 (Change No. 1 1976) ¶406b (“Prohibited Acts. The foregoing prohibition extends not only to
outright taking in violation of the law of war but also to any acts which, through the use of threats, intimidation, or
pressure or by actual exploitation of the power of the occupant, permanently or temporarily deprive the owner of the
use of his property without his consent or without authority under international law.”).
338 Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The
Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 38 (1907) (“Article XVLI. …
Private property may be taken by way of contribution or requisition, in order to compel the enemy to bear his share
of the burdens and hardships of war, but it can not be confiscated—that is, it can not be seized by way of
punishment for a breach of allegiance, for no tie of allegiance exists between the inhabitants of the occupied territory
794
11.18.6.2 Seizure of Private Property Susceptible to Direct Military Use. All
appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the
transport of persons or things, exclusive of cases governed by naval law, depots of arms, and,
generally, all kinds of ammunition of war, may be seized, even if they belong to private
individuals, but must be restored and compensation fixed when peace is made.339
Private property susceptible of direct military use includes cables, telephone and
telegraph facilities, radio, television, telecommunications and computer networks and equipment,
motor vehicles, railways, railway plants, port facilities, ships in port, barges and other watercraft,
airfields, aircraft, depots of arms (whether military or sporting), documents connected with the
conflict, all varieties of military equipment (including that in the hands of manufacturers),
component parts of, or material suitable only for use in, the foregoing, and, in general, all kinds
of war material.340
If private property is seized on the grounds that is it susceptible to direct military use, a
receipt should be given the owner, or a record made of the nature and quantity of the property
and the name of the owner or person in possession of it, in order that restoration and
compensation may be made at the conclusion of the war.341
11.18.6.3 Private Real (Immovable) Property. Private real (immovable) property
may under no circumstances be seized. It may, however, be requisitioned.342
11.18.6.4 Municipal, Religious, Charitable, and Cultural Property. The property
of municipalities, that of institutions dedicated to religion, charity, and education, and the arts
and sciences, even when State property, shall be treated as private property. All seizure of,
and the invading enemy. It is not understood that in the operation of a penalty which may be imposed by a military
commission or other tribunal with jurisdiction to try cases in occupied territory the private property of an individual
may not be taken. It is rather a taking without compensation—a taking which is not in conformity to the laws of war
which is here made the subject of the express prohibition.”).
339 HAGUE IV REG. art. 53 (“All appliances, whether on land, at sea, or in the air, adapted for the transmission of
news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and,
generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be
restored and compensation fixed when peace is made.”).
340 1956 FM 27-10 (Change No. 1 1976) ¶410a (“Seizure. The rule stated in the foregoing paragraph includes
everything susceptible of direct military use, such as cables, telephone and telegraph plants, radio, television, and
telecommunications equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges and
other watercraft, airfields, aircraft, depots of arms, whether military or sporting, documents connected with the war,
all varieties of military equipment, including that in the hands of manufacturers, component parts of or material
suitable only for use in the foregoing, and in general all kinds of war material.”).
341 See 1956 FM 27-10 (Change No. 1 1976) ¶409 (“If private property is seized in conformity with the preceding
paragraph, a receipt therefor should be given the owner or a record made of the nature and quantity of the property
and the name of the owner or person in possession in order that restoration and compensation may be made at the
conclusion of the war.”).
342 Refer to § 11.18.7 (Requisitions of Private Enemy Property).
795
destruction of, or willful damage done to institutions of this character, historic monuments,
works of art, and science, is forbidden, and should be made the subject of legal proceedings.343
The reference to “property of municipalities” above has been interpreted as not granting
preferential treatment for all types of property owned by municipalities, but as referring to
communal property, such as poor houses, asylums, park buildings, museums, and public records,
whether owned by a parish, a town, or a province.344
Just as private property may be subject to requisitions and contribution and certain other
purposes during a military occupation, the types of property referred to in Article 56 of the
Hague IV Regulations may also be subject to such demands.345 For example, such property may
be requisitioned in case of necessity for quartering the forces and the sick and wounded, storage
of supplies and material, housing of vehicles and equipment, and generally as prescribed for
private property.346 Such property must, however, be secured against all avoidable injury, even
when located in fortified places that are subject to seizure or bombardment.347
Additional rules apply to cultural property.348
In the practice of the United States, religious buildings, shrines, and consecrated places
employed for worship are used only for aid stations, for medical installations, or for the housing
343 HAGUE IV REG. art. 56 (“The property of municipalities, that of institutions dedicated to religion, charity and
education, the arts and sciences, even when State property, shall be treated as private property. All seizure of,
destruction or willful damage done to institutions of this character, historic monuments, works of art, and science, is
forbidden, and should be made the subject of legal proceedings.”).
344 William M. Franklin, Municipal Property Under Belligerent Occupation, 28 AJIL 383, 395-96 (1944) (“3. It was
not the intention of the drafters of the article to grant the highly preferential treatment of Article 56 to all types of
property owned by municipalities, simply on the basis of their ownership. Military installations maintained by
municipalities and all other types of property owned by municipalities which would be susceptible of direct military
use and were not dedicated to humanitarian, educational, scientific or artistic purposes do not enjoy the protection of
Article 56.
4. For this reason it was never thought necessary to define the word ‘communes’ in terms of any specific
unit of local government. The expression was intended to include communal property, such as poor houses,
asylums, park buildings, museums and public records, whether owned by a parish, a town or a province.”).
345 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 192 (“It has to be remembered, in this connection, that
municipal property is subject to requisitions and contributions…. While an occupant is prevented from confiscating
the various kinds of property listed in Article 56, the rules of international law do not prevent him, on the other
hand, from utilizing these properties for certain purposes during military occupation. He is entitled to lodge troops,
animals, stores, supplies, and the like in buildings belonging to exempt or immune institutions, and may convert
such buildings into hospitals for the care of this wounded. In other words, municipal and other exempt property may
be used by the occupying forces in the same manner and to the same extent as in the case of private property.”).
346 1956 FM 27-10 (Change No. 1 1976) ¶405 (“b. Use of Such Premises. The property included in the foregoing
rule may be requisitioned in case of necessity for quartering the troops and the sick and wounded, storage of
supplies and material, housing of vehicles and equipment, and generally as prescribed for private property. Such
property must, however, be secured against all avoidable injury, even when located in fortified places which are
subject to seizure or bombardment.”).
347 Refer to § 5.17.5 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians).
348 Refer to § 11.19 (Protection of Cultural Property During Occupation).
796
of wounded personnel awaiting evacuation, provided in each case that a situation of emergency
requires such use.349
11.18.7 Requisitions of Private Enemy Property. Although private enemy property may
not be confiscated, it may be subject to requisition, which is the method of taking private enemy
real (immovable) and personal (movable) property for the needs of the army of occupation.350
Requisitions in kind and services shall not be demanded from municipalities or
inhabitants except for the needs of the army of occupation. They shall be in proportion to the
resources of the country, and of such a nature as not to involve the inhabitants in the obligation
of taking part in military operations against their own country.351
11.18.7.1 Method of Requisitioning. Requisitions must be made under the
authority of the commander in the locality.352 No prescribed method is fixed, but if practicable,
requisitions should be accomplished through the local authorities by systematic collection in
bulk. They may be made direct by detachments if local authorities fail or if circumstances
preclude resort to such authorities.353
11.18.7.2 Types of Property That May Be Requisitioned. Goods and services that
are necessary for the maintenance of the occupation army (e.g., fuel, food, clothing, building
materials, machinery, tools, vehicles, furnishings for quarters) may be requisitioned. Billeting of
forces in occupied areas is also authorized.354
349 1956 FM 27-10 (Change No. 1 1976) ¶405c (“Religious Buildings, Shrines, and Consecrated Places. In the
practice of the United States, religious buildings, shrines, and consecrated places employed for worship are used
only for aid stations, medical installations, or for the housing of wounded personnel awaiting evacuation, provided
in each case that a situation of emergency requires such use.”).
350 DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 181 (Oct. 23, 1962) (“Requisition is the
method of taking private enemy movable and immovable property for the needs of the army of occupation.”); VON
GLAHN, THE OCCUPATION OF ENEMY TERRITORY 165 (“Requisition is the term used for the demand of a supply of
all kinds of articles needed by an army such as foodstuffs, clothing, horses, transportation and means of
transportation, and buildings.”).
351 HAGUE IV REG. art. 52 (“Requisitions in kind and services shall not be demanded from municipalities or
inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the
country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations
against their own country.”).
352 HAGUE IV REG. art. 52 (“Such requisitions and services shall only be demanded on the authority of the
commander in the locality occupied.”).
353 1956 FM 27-10 (Change No. 1 1976) ¶415 (“Requisitions must be made under the authority of the commander in
the locality. No prescribed method is fixed, but if practicable requisitions should be accomplished through the local
authorities by systematic collection in bulk. They may be made direct by detachments if local authorities fail or if
circumstances preclude resort to such authorities.”).
354 1956 FM 27-10 (Change No. 1 1976) ¶412b (“What May Be Requisitioned. Practically everything may be
requisitioned under this article that is necessary for the maintenance of the army, such as fuel, food, clothing,
building materials, machinery, tools, vehicles, furnishings for quarters, etc. Billeting of troops in occupied areas is
also authorized.”).
797
Special additional rules apply to the requisition of foodstuffs, articles necessary to
support life, or medical supplies available in the occupied territory.355 Similarly, additional rules
apply to the requisition of civilian hospitals and their supplies.356
11.18.7.3 Prices and Compensation for Requisitioned Articles and Services.
Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given,
and the payment of the amount due shall be made as soon as possible.357
The prices of articles and services requisitioned will be fixed by agreement if possible,
otherwise by military authority.358
11.18.7.4 Method of Enforcing Requisition. Coercive measures may be used to
enforce requisitions, but will be limited to the amount and kind necessary to secure the articles
requisitioned.359
11.19 PROTECTION OF CULTURAL PROPERTY DURING OCCUPATION
The following rules address the protection of cultural property during occupation. The
general rules for the protection of cultural property during hostilities also apply during
occupation.360 For example, military commanders have an obligation to take reasonable
measures to prevent or stop any form of theft, pillage, or misappropriation of, and any acts of
vandalism directed against, cultural property.361
11.19.1 Obligation With Respect to the Safeguarding and Preservation of Cultural
Property. Any Party to the 1954 Hague Cultural Property Convention in occupation of the whole
or part of the territory of another Party to the 1954 Hague Cultural Property Convention shall as
far as possible support the competent national authorities of the occupied country in safeguarding
and preserving its cultural property.362
355 Refer to § 11.14.2 (Limitation on Requisition of Food and Medical Supplies).
356 Refer to § 11.15.5 (Requisition of Civilian Hospitals).
357 HAGUE IV REG. art. 52 (“Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be
given and the payment of the amount due shall be made as soon as possible.”).
358 1956 FM 27-10 (Change No. 1 1976) ¶416 (“The prices of articles and services requisitioned will be fixed by
agreement if possible, otherwise by military authority. Receipts should be taken up and compensation paid
promptly.”).
359 1956 FM 27-10 (Change No. 1 1976) ¶417 (“Coercive measures will be limited to the amount and kind necessary
to secure the articles requisitioned.”).
360 Refer to § 5.18 (Protection of Cultural Property During Hostilities).
361 Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism
Against, Cultural Property).
362 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(1) (“Any High Contracting Party in occupation of the
whole or part of the territory of another High Contracting Party shall as far as possible support the competent
national authorities of the occupied country in safeguarding and preserving its cultural property.”).
798
Should it prove necessary to take measures to preserve cultural property situated in
occupied territory and damaged by military operations, and should the competent national
authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in
close co-operation with such authorities, take the most necessary measures of preservation.363
11.19.2 Respect for Cultural Property by Members of a Legitimate Resistance
Movement. Any Party to 1954 Hague Cultural Property Convention whose government is
considered by members of a resistance movement as their legitimate government shall, if
possible, draw the resistance movement members’ attention to the obligation to comply with
those provisions of the 1954 Hague Cultural Property Convention dealing with respect for
cultural property.364
11.19.3 Special Representative for Cultural Property in Occupied Territory and
Application for Special Protection. An Occupying Power shall appoint a special representative
for cultural property situated in that territory.365
The Occupying Power is competent to submit an application for immovable cultural
property to be entered into the International Register of Cultural Property Under Special
Protection.366
11.19.4 Transfers of Cultural Property From and Within Occupied Territory. The
requisition of movable cultural property situated in the territory of another Party to the 1954
Hague Cultural Property Convention is prohibited.367
If necessary under its obligation to take measures to preserve damaged cultural property,
the Occupying Power may arrange for the transport of cultural property to a refuge within
occupied territory in accordance with other provisions of the 1954 Hague Cultural Property
363 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(2) (“Should it prove necessary to take measures to
preserve cultural property situated in occupied territory and damaged by military operations, and should the
competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in
close co-operation with such authorities, take the most necessary measures of preservation.”).
364 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(3) (“Any High Contracting Party whose government is
considered their legitimate government by members of a resistance movement, shall, if possible, draw their attention
to the obligation to comply with those provisions of the Conventions dealing with respect for cultural property.”).
365 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as
any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) It
shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it
shall appoint a special representative for cultural property situated in that territory;”).
366 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13 (“1. Any
High Contracting Party may submit to the Director General of the United Nations Educational, Scientific and
Cultural Organization an application for the entry in the Register of certain refuges, centres containing monuments
or other immovable cultural property situated within its territory. Such application shall contain a description of the
location of such property and shall certify that the property complies with the provisions of Article 8 of the
Convention. 2. ln the event of occupation, the Occupying Power shall be competent to make such application.”).
Refer to § 5.18.8 (Special Protection for Certain Cultural Property).
367 Refer to § 5.18.6.2 (Prohibition Against Requisition of Movable Cultural Property Situated in the Territory of
Another Party to the 1954 Hague Cultural Property Convention).
799
Convention.368 Whenever a High Contracting Party occupying territory of another High
Contracting Party transfers cultural property to a refuge situated elsewhere in that territory,
without being able to follow the procedure for the transport of cultural property under special
protection provided for in Article 17 of the Regulations, the transfer in question shall not be
regarded as misappropriation within the meaning of Article 4 of the Convention, provided that
the Commissioner-General for Cultural Property certifies in writing, after having consulted the
usual custodians, that such transfer was rendered necessary by circumstances.369
11.20 LABOR OF PROTECTED PERSONS IN OCCUPIED TERRITORY
11.20.1 Types of Labor That May Not Be Compelled. The Occupying Power may not
compel protected persons to perform certain types of labor.
11.20.1.1 Prohibition on Compulsory Service in an Occupying Power’s Armed
Forces. The Occupying Power may not compel protected persons to serve in its armed or
auxiliary forces. No pressure or propaganda that aims at securing voluntary enlistment is
permitted.370
Compelling protected persons to serve in its armed or auxiliary forces would in most
cases also violate the prohibition against compelling inhabitants of occupied territory to swear
allegiance to the hostile State.371 Compelling a protected person to serve in the forces of a
hostile Power is a grave breach of the GC.372
11.20.1.2 Prohibition Against Compelling Protected Persons as Guards for
Compulsory Work Installations. The Occupying Power may not compel protected persons to
employ forcible means to ensure the security of the installations where protected persons are
performing compulsory labor.373
368 Refer to § 5.18.9.1 (Transport Under Special Protection).
369 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19 (“Whenever
a High Contracting Party occupying territory of another High Contracting Party transfers cultural property to a
refuge situated elsewhere in that territory, without being able to follow the procedure provided for in Article 17 of
the Regulations, the transfer in question shall not be regarded as misappropriation within the meaning of Article 4 of
the Convention, provided that the Commissioner-General for Cultural Property certifies in writing, after having
consulted the usual custodians, that such transfer was rendered necessary by circumstances.”).
370 GC art. 51 (“The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces.
No pressure or propaganda which aims at securing voluntary enlistment is permitted.”).
371 Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the
Hostile State).
372 Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).
373 GC art. 51 (“The Occupying Power may not compel protected persons to employ forcible means to ensure the
security of the installations where they are performing compulsory labour.”).
800
11.20.1.3 Prohibition Against Requisition Labor Such That Workers Are
Mobilized in a Military or Semi-Military Organization. In no case shall requisition of labor lead
to a mobilization of workers in an organization of a military or semi-military character.374
11.20.1.4 Prohibition Against Forcing Inhabitants to Provide Information About
the Opposing Army or Its Means of Defense. A belligerent is forbidden to force the inhabitants
of territory occupied by it to furnish information about the army of the other belligerent, or about
its means of defense.375 This obligation also results from the general prohibition against use of
physical or moral coercion against protected persons.376
11.20.1.5 Prohibition Against Other Work That Would Involve Protected Persons
in the Obligation of Taking Part in Military Operations. Protected persons may not be
compelled to undertake any work that would involve them in the obligation of taking part in
military operations.377 This rule is formulated more broadly than the general rule against
compelling a national to take part in operations against his or her own country378 because it
prohibits compulsory service in any military operation.379
374 GC art. 51 (“In no case shall requisition of labour lead to a mobilization of workers in an organization of a
military or semi-military character.”).
375 HAGUE IV REG. art. 44 (“A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish
information about the army of the other belligerent, or about its means of defence.”).
376 GC COMMENTARY 220 (“Furthermore, coercion is forbidden for any purpose or motive whatever. The authors of
the Convention had mainly in mind coercion aimed at obtaining information, work or support for an ideological or
political idea. The scope of the text is more general than that of Article 44 of the Hague Regulations of 1907, under
which ‘a belligerent is forbidden to force the inhabitants of a territory occupied by it to furnish information about the
army of the other belligerent, or about its means of defence’; Article 31 prohibits coercion for any purpose or reason
and the obtaining of information is only given as an example. Thus, the custom, hitherto accepted in practice but
disputed in theory, that an invasion army may force the inhabitants of an occupied territory to serve as ‘guides’ is
now forbidden.”). Refer to § 10.5.3.1 (No Physical or Moral Coercion).
377 GC art. 51 (“Protected persons may not be compelled to undertake any work which would involve them in the
obligation of taking part in military operations.”). See also HAGUE IV REG. art. 52 (“Requisitions in kind and
services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation.
They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in
the obligation of taking part in military operations against their own country.”).
378 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
379 GC COMMENTARY 296-97 (“The prohibition in this sentence is even more general than that contained in Article
52 of the Hague Regulations; for it does not only embrace work involving the participation of the inhabitants in
‘military operations against their own country’, but refers in a general way to any work ‘which would involve them
in the obligation of taking part in military operations’. The importance of the distinction will be realised if the mind
is cast back to cases when the occupying authorities have tried to circumvent the law of war by pretending that they
are no longer engaged in military operations against the home country of the persons whose services they are
requisitioning.”).
801
The purpose of this rule, at least in part, is to ensure that civilians in occupied territory
are not required to engage in activities that would forfeit their protections as civilians under the
law of war.380
The prohibition against forcing the inhabitants of an occupied territory to take part in
military operations against their own country precludes requisitioning their services in work
directly promoting the ends of the war, such as construction of fortifications, entrenchments, and
military airfields, or the transportation of supplies or ammunition in the zone of operations.381
11.20.2 Types of Work That May Be Compelled. The Occupying Power may not compel
protected persons to work unless they are over eighteen years of age, and then only on work that
is necessary for:
(1) the needs of the army of occupation; (2) the public utility services; or (3)
the feeding, sheltering, clothing, transportation, or health of the population of the occupied
country.382
Thus, the Occupying Power may compel protected persons to engage in these three types
of work, provided that such work is consistent with the other prohibitions against employing
protected persons.383 For example, even if it is permitted to compel civilian engineers in
occupied territory to provide information about the telecommunications system of an occupied
country in order to facilitate restoration of service, they may not be required to provide such
information where it will be used to locate and attack the armed forces of the occupied territory.
11.20.2.1 Examples of Services That May Be Requisitioned From Inhabitants.
The services that may be obtained from inhabitants by requisition include those of professionals,
such as engineers, physicians, and nurses; and of artisans and laborers, such as clerks, carpenters,
butchers, bakers, and truck drivers. The officials and employees of:
• railways, trucking companies, airlines, canals, and river or coastal steamship companies;
• cable, telegraph, telephone, radio, postal, and similar services;
• gas, electric, and water works; and
380 GC COMMENTARY 297 (“One point must not be forgotten: the Fourth Convention applies to civilians and
civilians are by definition outside the fighting. Any action on the part of the Occupying Power which had the effect
of involving them, directly or indirectly, in the fighting and so preventing them from benefiting by special protection
under the Convention must be regarded as unlawful. The application of this clause depends very largely on the good
faith of the occupant, who must judge in each individual case, with a full sense of his responsibility in the matter,
whether or not the work demanded is compatible with the conditions here laid down.”).
381 1956 FM 27-10 (Change No. 1 1976) ¶420 (“The prohibition against forcing the inhabitants to take part in
military operations against their own country precludes requisitioning their services upon works directly promoting
the ends of the war, such as construction of fortifications, entrenchments, and military airfields or the transportation
of supplies or ammunition in the zone of operations.”).
382 GC art. 51 (“The Occupying Power may not compel protected persons to work unless they are over eighteen
years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the
public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the
occupied country.”).
383 Refer to § 11.20.1 (Types of Labor That May Not Be Compelled).
802
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