Military Occupation 11.1.1 – 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. Military
occupation is also called belligerent occupation. The conduct of
military occupation has also been characterized as an exercise of
“military government” or “martial law."
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.
Military Occupation and Bodies 11.1.2 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.
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.
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.
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. 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.
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.” Articles 47 through 78 of the GC specifically address
occupied territories. 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.
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. 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.
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.
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. 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 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
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