PREVIEW The 1949 Geneva Conventions: A Commentary PT 3

OUP UNCORRECTED PROOF REVISES, Mon Jul 20 2015, NEWGEN
5. O C C U PI E D T E R R I T OR I E S
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Chapter67. The Concept and theBeginning ofOccupation

A. Introduction
B. Meaning and Application
I. Establishment of effective control by the Occupying Power
II.
III.
I V.
V.
a.
b.
c.
d.
e.
f.
g.
h.
Necessary presence of armed forces?

Occupation of the air and the sea?
Occupation despite resistance?
The possibility of control is sufficient
Minimum duration?
Minimum extent of territory?
Indirect occupation through control by an armed group?
Joint control by a coalition
Loss of effective control by the adverse party

Lack of consent
Irrelevance of other criteria
A distinction between invasion and occupation?
a. The systematic argument

b. Is it sufficient to exercise control over a person or over the piece of land
onwhich that person is found?
c. A flexible understanding of the obligations of an Occupying Power?
d. A functional understanding of the concept of occupation itself?
V I. The special case of occupation without armed resistance

II. Occupation in national liberation wars
V
C. Relevance in Non-International Armed Conflicts
D. Legal Consequences of a Violation
I. The consequences of occupation in international criminal law
II. Occupation and jurisdiction under international human rights law
III. Particular efforts to ensure respect by Israel for the rules on military
occupation in Geneva ConventionIV
E. Critical Assessment
mn
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8
12
12
15
16
18
20
21
22
24
25
28
36
41
43
45
46
47
52
55
57
58
59
60
61
62
Select Bibliography
Benvenisti, E., Occupation, Belligerent, in MPEPIL
Benvenisti, E., The International Law of Occupation (2nd edn, Oxford:OUP,2012)
Dinstein, Y., The International Law of Belligerent Occupation (Cambridge:CUP,2009)
Ferraro, T., Determining the Beginning and End of an Occupation under International
Humanitarian Law, 94 IRRC 885 (2012)133
von Glahn, G., The Occupation of Enemy Territory: A Commentary on the Law and Practice of
Belligerent Occupation (Minneapolis, Minn:University of Minnesota Press,1957)
Grignon, J., Lapplicabilit temporelle du droit international humanitaire (Geneva: Schulthess,
Collection genevoise,2014)
ICRC, Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting
(Geneva:ICRC,2012)
Kolb, R./Vit, S., Le droit de loccupation militaire:perspectives historiques et enjeux juridiques actuels
(Brussels:Bruylant,2009)
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Koutroulis, V., Le dbut et la fin de lapplication du droit de loccupation (Paris:Pedone,2010)

Pictet Commentary GC IV, at 212,5961
Roberts, A., What Is a Military Occupation?, 55 BYBIL (1984)261
Vit, S., Lapplicabilit du droit international de loccupation militaire aux activits des
organisations internationales, 86 IRRC 853 (2004)9
Zwanenburg, M., The Law of Occupation Revisited:The Beginning of an Occupation, 10 YIHL
(2007)99
A.Introduction
1 International humanitarian law (IHL) offers more detailed and far-reaching protection to
protected civilians who find themselves in an occupied territory than to anyone else. Even
states obsessed with their sovereignty admit that international law regulates their conduct
when they act on the territory of another sovereign state which they have no title to rule.
From a humanitarian point of view, civilians in occupied territories deserve and need particularly detailed protection; they are living on their own territory, and through no choice
of their own come into contact with the enemy. This happens merely because the enemy
has gained territorial control over the place where theylive.
2
Because such a detailed and protective regime applies to occupied territories, it is crucial
to determine what occupation is, and when the rules of Geneva Convention (GC) IV on
occupied territories start to apply to a certain place or person during an armed conflict.
Logically, occupation must first be defined before one can enquire when it begins, yet
these two questions are so interlinked that they may be considered as two sides of the
same coin. In recent history it is not surprising that belligerents have often denied, or
were reluctant to admit, that a territory over which they gained control was an occupied
territory. In part this is done in order to justify non-respect for the detailed rules of this
regime. Other reasons are, however, perhaps even more important. In an international
legal order prohibiting aggression and the acquisition of territory by force, military occupation is inevitably suspect; in public opinion it has a pejorative connotation,1 even when
the military force that leads to an occupation does not violate jus ad bellum. In addition,
any occupation necessarily deprives the local population, if it constitutes a people, at least
temporarily of its right to self-determination, and it is incompatible with the idea that the
will of the population must be the basis of the authority of government.2 Furthermore,
when an armed conflict erupts due to a dispute over territory, the party gaining control
over that territory will never treat it as an occupied territory. Lastly, we have to recognize
that the very concept of military occupation is based upon territorial control and one state
hindering another states exercise of control over its own territory, but modern warfare is
often not about territorial control. In addition,control may be exercised from a distance
and the enemy may be more or less a failed state. However, as long as no specific rules are
adopted to cover such new situations, there is no reason not to apply the law of occupation,
even if the situation does not conform to the traditional pattern of military occupation.
1
ICRC, Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting (Geneva:ICRC,
2012),at16.
2
Cf Art 21(3)UDHR.
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Deviation from the traditional stereotype of occupation is not a sufficient reason for the
law not toapply.
The main legal issues arising in relation to the concept and beginning of military 3
occupation are how much control a state must exercise, and over what extent of territory, before it can be considered an Occupying Power. This also raises the controversy
whether the rules of GC IV on military occupation already apply during the invasion
of a territory. Furthermore, it must be clarified whether the rules of GC IV on military
occupation become inapplicable by virtue of consent to or the legality of the foreign
presence.
Whether a territory is or is not considered occupied under IHL has important practical 4
implications. The rules of IHL on military occupation, set out in the Geneva Conventions
and discussed in this and the following chapters (and those foreseen in the Hague
Regulations), protect a great variety of collective rights of the occupied population. The
Hague Regulations include in particular the right not to be subject to changes affecting
the laws in force in the country,3 or rules on the use of private or public property for public
or state interests.4 Geneva Convention IV prohibits voluntary population movements (settlements) encouraged by the state.5 Those rules cannot be found in IHL applicable outside
occupied territories or in international human rights law (IHRL). Such conduct would
be perfectly legitimate if adopted by a state in its own territory. Similarly, under GC IV,
individual deportations are absolutely prohibited where these take place from occupied
territories,6 and a state has a clear treaty-based obligation to accept outside humanitarian
assistance for the benefit of civilians in need in an occupied territory.7 Such prohibition
and obligations apply only where the territory is considered occupied. It is crucial, therefore, to know when a territory is occupied.
Historically, before the First World War, debates about the definition of occupation 5
took place in a different policy context. Typical Occupying Powers at that time, such as
Germany and Russia, favoured a low threshold of territorial control for the law of occupation to apply, because at the time the law of military occupation was mainly seen as giving the occupant powers under international law. Conversely, those states which feared
being occupied, such as Belgium, The Netherlands, Switzerland, and France, insisted on
a high threshold of territorial control, making the applicability of the law of occupation
more difficult and distinguishing occupation from invasion:No one doubted that an
invading army would seek to attain [] effective control over the occupied populations.8
The Hague Regulations attempted to reconcile these two interests with their definition
of occupation,9 which failed to clarify the issue. Today, in particular after the experience
of the Second World War and the creation of detailed protection for civilians in GC IV,
the interests at stake are inverted. The humanitarians and prospective occupied countries
aim to apply the international rules on occupation as soon as possible, while prospective
or actual Occupying Powers seek to avoid their application. Occupation has thus become
a burden rather than a source of rights for the Occupying Powers. Humanitarians fear
Cf Art 43 Hague Regulations. 4 Cf Arts 4656 Hague Regulations.

Cf Art 49 para 6GCIV. 6 Cf Art 49 para 1GCIV. 7 Cf Art 59GCIV.
8
E. Benvenisti, The International Law of Occupation (2nd edn, Oxford:OUP, 2012),at45.
9
Cf Art 42 Hague Regulations.
3
5
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that occupiers who control a territory will refrain from administering it, and fail to comply fully with the many obligations under GC IV and other applicable rules of IHL on
military occupation.10
6
In the past 50years, any discussion about the law of occupation, including its definition and constituent elements, has been overshadowed by one case in particular, the
Palestinian territory occupied by Israel. Although atypical, this case has attracted the
most international and domestic jurisprudence, scholarly writings, and practice of states
and international organizations. For military occupation under GC IV, this case is anomalous because of its history, duration, and the desire of the Occupying Power to annex
the occupied territory de jure or de facto. In addition, technically IHL of military occupation applies due to the 1967 armed conflict between Israel, Egypt, Jordan, and Syria,
while the main issue today is the distinct concept of alien occupation, i.e. the right to
self-determination of the Palestinian people. In this context, any discussion about the
constitutive elements of an occupation and when it starts is influenced by the arguably
distinct debate of whether Gaza and parts of the West Bank, from which Israeli forces
have withdrawn, are still occupied territories. The case of the Palestinian territory, on
which nearly all international attention has focused (with short interludes during the
Iraqi occupation of Kuwait and the United States (US) occupation of Iraq), has completely overshadowed, if not led to a neglect of, other cases where the rules of IHL on
military occupation arguably applied. These cases include the Indian intervention in East
Pakistan, the Soviet presence in Afghanistan and Iraqi control over vast parts of Iranian
territory in the 1980s, the Indonesian presence in East Timor, the Indian presence in
Kashmir, the Moroccan presence in the Western Sahara, the US invasions of Grenada
and Panama in the 1980s, control of the Eastern Congo by several neighbouring African
states, the (direct and indirect) Armenian presence in Nagorno Karabach, the intermittent Turkish military operations in Northern Iraq, the Ethiopian presence in Somalia,
the Russian presence in Abkhazia and South Ossetia, the presence of US and coalition
forces in Afghanistan displacing the Taliban as the de facto government in 2001, or, most
recently, the occupation of Crimea by Russia. At least some attention has been given to
other cases of occupation:the mutual control by Eritrea and Ethiopia of small parts of
each others territory during the 19982000 war was covered by an international arbitration; the International Court of Justice (ICJ) dealt with the Ugandan occupation of the
Congolese Ituri province; and the Turkish presence in Northern Cyprus has attracted the
attention of the European Court of Human Rights (ECtHR), which implicitly classified
it as an occupation, without directly applying the rules of IHL on military occupation.
As for the question of whether and when the rules of IHL on military occupation apply
to an international territorial administration or the presence of forces of an international
organization, the cases of Kosovo, East Timor, and Somalia have led to intense scholarly
debates.
7
The term occupation appears in Common Article 2 paragraph 2 of the Geneva
Conventions, which makes all of the Geneva Conventions (not only GC IV) applicable in
cases of partial or total occupation of the territory of a High Contracting Party, even if the
said occupation meets with no armed resistance. Furthermore (and more importantly in
practice), the most important and lengthy part of GC IV is Part III on protected persons,
which contains an entire section (Section III) applicable to occupied territories. Equally
Benvenisti, above n 8,at46.
10
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applicable to occupied territories are Section I, containing, as its title indicates, provisions
common to the territories of the parties to the conflict and to occupied territories, and
Section IV, prescribing detailed rules protecting protected civilians interned for imperative
security reasons. Lastly, under Article 4(B)(1) GC III, former members of the armed forces
of the Occupied Power reinterned by an Occupying Power benefit from the treatment
accorded to prisoners of war (POWs). Conversely, Article 4(A)(6) of GC III reserves POW
status for participants in a leve en masse to [i]nhabitants of a non-occupied territory.
B. Meaning and Application

The Geneva Conventions do not define occupation. Under the general rule on treaty 8
interpretation,11 and according to Article 154 GC IV, which states that GC IV is supplementary to Section III of the Hague Regulations on military authority over the territory
of the hostile state, it seems appropriate to refer to the Hague Regulations for a definition,
Article 42 of which states:
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.
The only authentic version of the Hague Regulations is the French version, which indicates that the territory must be plac de fait sous lautorit de larme ennemie. This is clearer
than the English translation and means that occupation is exclusively a question of fact.12
Most authors and the ICJ understand this definition rather restrictively, requiring a high
degree of control and administrationand not mere presenceby the hostile army.13
However, as will be discussed later (MN 48)in relation to the question whether the rules
of IHL on military occupation already apply during an invasion, many argue that the
concept of occupation in GC IV is broader than that found in the Hague Regulations.
The criteria which must be fulfilled for a territory to be considered occupied under the 9
definition found in the Hague Regulations are generally summarized as requiring:
effective control by one state engaged in an international armed conflict (IAC) against
another state, over parts of the territory of the latter;
loss of effective control by the latter over that part of its territory;and
lack of consent by the latter.14
The first two criteria are explicitly mentioned by the 1880 Oxford Manual,15 and they still
appear in the 2004 UK Manual of the Law of Armed Conflict and the ICJ judgment in DRC
Art 31(3)(c)VCLT.
ICTY, The Prosecutor v Mladen Naletili and Vinko Martinovi, Trial Chamber Judgment, IT-98-34-T,
31 March 2003, para 211; V. Koutroulis, Le dbut et la fin de lapplication du droit de loccupation (Paris:Pedone,
2010), at 2074 and 97149; T. Ferraro, Determining the Beginning and End of an Occupation under
International Humanitarian Law, 94 IRRC 885 (2012) 133, at1346.
13
SeeMN18.
14
ICRC Expert Meeting, above n 1, at 1723; Ferraro, above n 12, at 13943; P. Spoerri, The Law of
Occupation, in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict
(Oxford:OUP, 2014) 182, at 18892.
15
Art 41 of the Oxford Manual of the Laws of War on Land, adopted by the Institute of International Law,
1880, reproduced in D. Schindler and J. Toman, The Laws of Armed Conflicts (4th edn, Nijhoff:Leiden, 2004)
29,at35.
11
12
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v Uganda.16 The third criterion is inherent in the condition that the occupying army must
be hostile.17
10
The International Criminal Tribunal for the former Yugoslavia (ICTY) set out more
detailed guidelines in the Naletili case, which do not contradict but rather detail the
above-mentioned criteria:
the occupying power must be in a position to substitute its own authority for that of
the occupied authorities, which must have been rendered incapable of functioning
publicly;
the enemys forces have surrendered, been defeated or withdrawn. In this respect,
battle areas may not be considered as occupied territory. However, sporadic local
resistance, even successful, does not affect the reality of occupation;
the occupying power has a sufficient force present, or the capacity to send troops
within a reasonable time to make the authority of the occupying powerfelt;
a temporary administration has been established over the territory;
the occupying power has issued and enforced directions to the civilian population.18
11 In the text that follows, the traditional criteria will be discussed first, followed by those
criteria which are not relevant. Then the controversy of whether and to what extent the
rules of IHL on military occupation already apply during an invasion will be addressed.
Lastly, special cases will be dealt with, such as occupation without armed resistance and
national liberationwars.
I.Establishment ofeffective control bythe OccupyingPower

a.Necessary presence ofarmed forces?
12 Most experts believe that an occupation can only begin with the presence of foreign armed
forces on the ground.19 In contrast, some others consider that effective control may be
exercised remotely, either through control of entry into the territory, the territorial airspace or sea, or through control over living conditions in a territory.20 In reality, those taking the latter view focus on the issue of the end of occupation and want to argue that the
Gaza Strip is still occupied by Israel, although Israeli forces withdrew from the Gaza Strip
in 2005.21 Indeed, a majority of international institutions adopt this position regarding
16
UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford:OUP, 2004), para 11.3;
ICJ, Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment, 19 December 2005, para173.
17
J. Grignon, Lapplicabilit temporelle du droit international humanitaire (Geneva:Schulthess, Collection
genevoise, 2014), at 11922.
18
ICTY, Naletili, above n 12, para 217 (footnotes omitted).
19
ICRC Expert Meeting, above n 1, at 1719; Y. Dinstein, The International Law of Belligerent Occupation
(Cambridge:CUP, 2009), at 44; Ferraro, above n 12, at 1437; H.-P. Gasser, Protection of the Civilian
Population, in D. Fleck (ed), Handbook on International Humanitarian Law (2nd edn, Oxford:OUP, 2008)
237, at 274; M. Zwanenburg, The Law of Occupation Revisited:The Beginning of an Occupation, 10 YIHL
(2007) 99, at 126; M.Bothe, Beginning and End of Occupation, in Actes du Colloque de Bruges, Les dfis
contemporains au droit de loccupation, 2021 octobre 2005, Collge dEurope, Comit international de la
Croix-Rouge, Collegium, No 34, 2006, at 27; Spoerri, above n 14, at189.
20
See, at least for a territory of small dimensions and with the necessary technology, P. Spoerri, Die
Fortgeltung vlkerrechtlichen Besatzungsrechts whrend der Interimsphase palstinensischer Selbstverwaltung in
der West Bank und Gaza (Frankfurt am Main:Europische Hochschulschriften, 2001), at237.
21
S. Solomon, Occupied or Not:The Question of Gazas Legal Status after the Israeli Disengagement, 19
Cardozo Journal of International and Comparative Law (2011) 59, at 723; M. Mari, The Israeli Disengagement
from the Gaza Strip:an End of the Occupation?, 8 YIHL (2005) 356, at 363 and 365; E. Benvenisti, The Law
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the Gaza Strip.22 Whether a territory which was once occupied by ground forces may
continue to be occupied by remote control is a question dealt with in Chapter74, MN
39-40, of this volume.
From a strictly logical point of view, one might argue that the same criteria should be 13
used to determine the beginning, the existence, and the end of an occupation.23 However,
many experts consider that on the question of whether foreign armed forces must be present
on the ground, there is no congruence between the criteria for the beginning of occupation
and those for its end.24 Indeed, once ground forces establish sufficient control over territory
(and over persons, so that they are considered to be in the hands of the Occupying Power),
occupation may be maintained remotely. No one argues, however, that a besieged town,
e.g. Leningrad in the Second World War, is an occupied territory before the besieged forces
surrender, simply because the besieger controls the airspace and all entry to and exits from
the territory, and therefore life in the besieged town. While resistance within an occupied
territory does not necessarily end occupation, it is difficult to imagine that occupation being
established over a place while the ground forces of the Occupied Power still resist and control
that place. In addition, to maintain that occupation can be established remotely without
the armed forces ever gaining control of the territory on the ground, would also deprive the
civilian population of this territory of combatant and POW status if they engaged in leve
en masse, as the latter is reserved to [i]nhabitants of a non-occupied territory.25 Aconcept of
occupation established through remote control is also incompatible with the actual obligations of an Occupying Power prescribed by the rules of IHL. Without ground control, an
Occupying Power cannot respect the many rights it is required to protect and to fulfil, e.g.
concerning public order and civil life, health or education, foreseen in the pertinent rules of
IHL.26 Therefore, it is only logical that some proponents of the concept of remote or virtual
occupation derive from IHL a duty to occupy27 through ground forces.
However, it is not necessary for the occupying forces to be present on each square metre 14
of a territory. According to the topographical features of the territory, the density of the
population, and the degree of resistance (even passive or non-military), it is sufficient if
occupying troops are positioned strategically on the ground and, if necessary, are then able
to be dispatched fairly quickly to demonstrate and enforce their authority.28
on Asymmetric Warfare, in M.H. Arsanjani etal (eds), Looking to the Future:Essays on International Law in
Honor of W.Michael Reisman (Leiden, Boston:Martinus Nijhoff, 2011) 929, at 943; S. Darcy and J. Reynolds,
An Enduring Occupation:The Status of the Gaza Strip from the Perspective of International Humanitarian
Law, 15 Journal of Conflict & Security Law (2010) 211, at 220 and 2267; S. Dikker Hupkes, What Constitutes
Occupation? (Leiden:E.M. Meijers Instituut, 2008), at 22, 35, 51, 849; very nuanced:Benvenisti, above n 8,
at 54. However, it must be mentioned that the Institut de droit international already envisaged in 1913, when
drafting the Oxford Manual of the Laws of Naval Warfare, that a coastal area or island might be occupied by
the mere presence of ships, which exercise actual authority over those land areas through their firepower (see
Annuaire de lIDI, Session de Christiania 1912Session dOxford 1913 (Brussels:Lesigne, 1929), at 920). See,
for further historical precedents and authors who could be considered to support a concept of remote occupation, Koutroulis, above n 12, at 40, fn126.
22
See UN Doc A/HRC/12/48, 25 September 2009, paras 2739; UN Doc A/HRC/15/21, 22 September
2010, paras 636. For an overview of these positions, see Grignon, above n 17, at2935.
23
Ferraro, above n 12, at 156; with some hesitation, ICRC Expert Meeting, above n 1, at 11, mentioning that
the sui generis character of some situations could alter the criteria.
24
ICRC Expert Meeting, above n 1, at 17 and 19; Ferraro, above n 12, at 1578. Contra Y. Shany, Faraway
so Close:The Legal Status of Gaza after Israels Disengagement, 8 YIHL (2005) 369, at378.
25
26
Art 4(A)(6) GC III; Art 2 Hague Regulations.
Ferraro, above n 12, at147.
27
28
ICRC Expert Meeting, above n 1, at 17; E.Benvenisti, Occupation, Belligerent, in MPEPIL (2009),
para8; US, Department of the Army Field Manual FM 27-10, The Law of Land Warfare (1956), para356.
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b.Occupation ofthe air and thesea?

15 Some scholars consider that not only land, but also the territorial sea and the airspace
above the territory of another state may be occupied.29 In the context of no-fly zones over
Iraq, these scholars even consider that the air may be occupied when the underlying land
is not. Although this may be desirable from a humanitarian perspective, as it may lead to
obligations for states exercising such control, the result is absurd. Occupation is a concept
of the law of land warfare.30 Once land is occupied, the Occupying Power may equally
have rights and obligations concerning the airspace over such territory and the territorial
sea adjacent to such territory.31 However, the territorial sea or the airspace cannot possibly
be occupied alone. They follow, as on other issues, the territory which justifies the rights
the territorial state exercises overthem.
c.Occupation despiteresistance?
16 As long as resistance continues in a given place, the occupation of that place cannot begin.
However, once a place is occupied and the armed forces of the Occupied Power are no
longer able to resist, periodic but temporary resistance in some areas of the occupied
territory does not stop a territory from being considered occupied.32 Article 4(A)(2) GC III
indirectly confirms this by conferring (under certain conditions) POW status on
[m]embers of [] organized resistance movements, belonging to a Party to the conflict,
and operating in or outside their own territory, even if this territory is occupied, should
they fall into the power of the Occupying Power. If any organized resistance barred occupation, such resistance fighters would by definition never find themselves in an occupied
territory. Most experts add that even temporarily successful resistance does not bar occupation.33 They usually refer to a decision of a US Military Tribunal after the Second World
War, whichheld:
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.34
Such a theory may be practical for a criminal tribunal operating with hindsight.
Disadvantages exist when the rules of IHL must be interpreted for those who fight during
an armed conflict. For example, if resistance fighters succeed in liberating part of an occupied territory, neither they nor the Occupying Power will know whether the liberation is
temporary ornot.
17
In light of the foregoing, it is submitted that in conformity with the second sentence of
Article 42 of the Hague Regulations (The occupation extends only to the territory where
Koutroulis, above n 12, at3541.
Thus equally the position of the United States, Department of State Memorandum of Law on Israels
Right to Develop New Oil Fields in Sinai and the Gulf of Suez, 16 ILM (1977)749.
31
Benvenisti, above n 8, at 55; Dinstein, above n 19, at478.
32
ICRC Expert Meeting, above n 1, at 17; ICTY, Naletili, above n 12, para 217; Benvenisti, above n 8, at
51; Dinstein, above n 19, at 45; K. Drmann and L. Colassis, International Humanitarian Law in the Iraq
Conflict, 47 GYIL (2004) 293, at308.
33
Dinstein, above n 19,at45.
34
The Hostages Trial, Trial of Wilhelm List and others, United States Military Tribunal, Nuremberg, 19478,
UNWCC Law Reports, vol VIII, 34,at56.
29
30
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such authority has been established and can be exercised), which was disregarded by the
US tribunal (cited above),35 any act of resistance which leads to a loss of territorial control
over a part of a territory must endpossibly temporarilythe occupation in that part of
the territory.36 In any case, an Occupying Power would be materially unable to fulfil its
obligations in a place controlled by resistance fighters.
d.The possibility ofcontrol is sufficient

Amajority of experts consider that a possibility of exercising control over the territory or 18
part of it is sufficient.37 However, this possibility must be based on a ground presence in
the territory. This idea may be expressed by requiring that the Occupying Power must control a territory but not necessarily its population.38 This latter idea flows from the former,
but, as already mentioned, control over territory vanishes where the population is able successfully to resist as part of an organized resistance. Conversely, the mere military capability of a belligerent to control a given territory at its will is not sufficient if that belligerent
chooses not to invade it with ground forces. In addition, the ICJ seems to require that the
authority is actually exercised.39 In this writers view, this does not mean that occupying
forces need be present everywhere. However, it would mean that a foreign state is not an
Occupying Power if it is present in enemy territory and chooses not to exercise authority.
With all due respect for the ICJ, if it is established both that the territorial sovereign is
hindered from exercising authority and that there is no consent, it is contrary to legal logic
to deny that the occupying state has the manifold obligations under the IHL rules on military occupation to protect and fulfil (i.e. to exercise authority), simply because it chooses
not to exercise authority.40 Correctly, the UK Manual requires only that the occupying
power is in a position to substitute its authority for that of the former government.41
The concept of occupation may be interpreted by factoring in the obligations of an 19
Occupying Power under the IHL rules of military occupation. Aterritory is then considered occupied only if the Occupying Power is able to comply with its obligations, in
particular with Article 43 of the Hague Regulations, requiring it to maintain or restore
public order and civil life.42 As will be discussed below (MN 46)in relation to the allegedly
Critical also Benvenisti, above n 8,at47.

Similarly ICRC Commentary APs, para 1700, which refers to Case No 45 Trial of Carl Bauer, Ernst
Schrameck and Herbert Falten, Permanent Military Tribunal, Dijon, 1945, UNWCC Law Reports, vol VIII,
15, at 18, in which it was held: Any part of territory in which the occupant has been deprived of actual means
for carrying out normal administration by the presence of opposing military forces would not have the status
of occupied territory within the terms of Arts 2 and 42 of the Hague Regulations. The fact that other parts of
the occupied country, as a whole, are under effective enemy occupation would not affect this situation. As here
also Ferraro, above n 12, at 1512. Note that the House of Lords considered in Al-Skeini that the UK had lost
jurisdiction over parts of Iraq it occupied because of the amount of resistance:Al-Skeini and others v Secretary
of State for Defence [2007] UKHL 26,[83].
37
ICRC Expert Meeting, above n 1, at 19; Dinstein, above n 19, at 445; Benvenisti, above n 8, at 4950;
Benvenisti, in MPEPIL, above n 28, para 5; M.Bothe, Effective Control:ASituation Triggering the
Application of the Law of Belligerent Occupation, Background Document, in ICRC Expert Meeting, above
n 1, at 39; M. Bothe, Effective Control During Invasion:APractical View on the Application Threshold
of the Law of Occupation 94 IRRC 885 (2012) 37, at 3940; G. von Glahn, The Occupation of Enemy
Territory:ACommentary on the Law and Practice of Belligerent Occupation (Minneapolis, Minn:University
of Minnesota Press, 1957), at 29; Shany, above n 24, at 3758; Spoerri, above n 14, at 190; ICTY, Naletili, above
n 12, para217.
38
39
ICJ, DRC v Uganda, above n 16, para173.
40
Bothe in ICRC Expert Meeting, above n 1, at 39. Critical also Ferraro, above n 12, at1501.
41
42
UK Manual, above n 16, para11.3.
ICRC Expert Meeting, above n 1,at18.
35
36
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distinct invasion phase, the obligations of an Occupying Power, including under Article
43 of the Hague Regulations, are nevertheless mainly obligations of means, and are therefore flexibly adapted to the amount of authority and factual possibilities of the occupying
forces.
e.Minimum duration?
20 The Occupying Power need not control a part of a territory for a minimum duration.
The EritreaEthiopia Claims Commission (EECC) was satisfied with just a few days.43
ASwiss Military Manual envisages the control of an Occupying Power changing several
times and remaining for a very short period.44 The occupation may be instant or take time
to consolidate to reach the necessary degree of control.45 Furthermore, a standard requiring a certain duration would not be practicable for parties, fighters, victims, and humanitarian organizations, because they would be required to foresee how control over territory
would develop before they could know whether they must comply with the pertinent rules
of IHL, are protected by them, should have complied with them from the beginning, or
may invoke them at all. Conversely, a concept of occupation without a minimum duration
is practicable only if applied functionally, i.e. not all the rules of IHL on military occupation apply at once.46
f.Minimum extent ofterritory?

21 As for the minimum extent of territory a party must control, it is uncontroversial that a
state may be occupied in part. Experts agree that a single village or a small island may be
occupied.47 Extreme adherents to the position that GC IV applies during the invasion
phase, discussed below (MN 45), would argue that to torture, beat, arrest, detain, or
deport a person, invading forces must necessarily control the spot on which that person
is found.48 That spot would then constitute an occupied territory; it is under their control
and the territorial state is no longer able to exercise its authority over that spot. Neither
GC IV nor the Hague Regulations clarify the minimum amount of territory that needs
to be controlled for it to become an occupied territory. One might therefore consider the
portion of land on which a single house is built as occupied if the enemy has control over
that house but not over the neighbouring house, separated from the former through the
frontline. No one would deny that if such a situation arises after a ceasefire, the last house
in the occupied territory before the ceasefire line and its inhabitants would benefit from
the rules of IHL on military occupation. Admittedly, while a state may comply with all
obligations of an Occupying Power in a village, a concept of occupation fragmenting
single houses and the portion of land on which they are located will inevitably lead to a
functional concept of occupation, under which the portion of land on which the house
is built must be considered occupied for the purposes of the applicability of certain rules
of IHL on occupation, but not for others (see MN 4750). Conversely, even if one rejects
EECC, Central FrontEritreas Claims 2, 4, 6, 7, 8& 22, Partial Award, 28 April 2004, para57.
Switzerland, Gesetze und Gebruche des Krieges (Auszug und Kommentar), Reglement 51.7/IId (16 January
1987), Art152.
45
Grignon, above n 17, at 11415.
46
ICRC Expert Meeting, above n 1, at 24. For a discussion of such a functional concept of occupation, see
MN4751.
47
48
M. Sassli, A Plea in Defence of Pictet and the Inhabitants of Territories under Invasion:The Case for the
Applicability of Convention IV during the Invasion Phase, 94 IRRC 885 (2012) 42,at45.
43
44
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the concept of remote occupation, it is possible that armed forces may control a strip of
land adjacent to their countrys frontier while remaining physically on their side of the
border. Thus, in the case of the Palestinian territory, even if Gaza were no longer considered occupied since 2012, the buffer zone officially declared by Israel around the Gaza
Strip, consisting of a military no-go area, in which Israel hinders the entry of Palestinians
by firing on them from Israeli territory, may still be considered as occupied, at least for
the purpose of the applicability of those rules on occupation with which Israel is able to
comply without entering the Gaza Strip.49
g.Indirect occupation throughcontrol byan armedgroup?

Normally, to qualify as an occupied territory, armed forces of the Occupying Power are 22
required to exercise the necessary control over a territory. As this is a question of fact, other
de jure or de facto agents (e.g. a private military company50) may equally contribute to such
control or exercise it alone. What counts is that those who exercise control are acting on
behalf of - or are controlled by - a foreign power. When a foreign state exercises control
over an armed group, which in turn controls a territory during an armed conflict against
the territorial state, the state controlling the group is constructively an OccupyingPower.
To reach such a conclusion, one has to consider the controversial question of the neces- 23
sary degree of control by the foreign state over the armed group. For purposes of attribution
of state responsibility for illegal conduct to a state, the ICJ requires effective control over the
conduct, or complete dependence of the armed group on the relevant state, while it has left
open whether mere overall control by a foreign state over the armed group fighting a prima
facie non-international armed conflict is sufficient to classify the conflict as international.51
The ICTY considers that overall control over an armed group is sufficient both for purposes
of attribution of conduct of the armed group to the controlling state and for the classification of the conflict as international if that state is a foreign state.52 Logically, an ICTY Trial
Chamber therefore considered overall control as sufficient to trigger an occupation by the
state controlling an armed group,53 which led to an absurd result:Croatia was legally an
Occupying Power in parts of Bosnia where it never directed the armed group, the Croatian
Defence Council (HVO) made up of Bosnian Croats, to be present. Thus, the HVO fighters had to comply with the restraints applicable to an Occupying Power while operating on
territory inhabited by Bosnian Croats, including when carrying out activity on their own
initiative while fighting against the Bosnian Government. Another ICTY Chamber applied
the law of military occupation only if the foreign state, Croatia, had a further degree of control than mere overall control (without clarifying whether effective control was required
and, if so, whether the effective control must be exercised by the foreign state over the group,
or alternatively by the group or the foreign state over the territory in question).54 Inthis
49
See, e.g., Al Haq, Shifting Paradigms, Israels Enforcement of the Buffer Zone in the Gaza Strip (Ramallah,
Al Haq,2011).
50
51
See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits, 27 June
1986, para 115; ICJ, Case concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, 26 February 2007, paras 396407.
52
ICTY, The Prosecutor v Duko Tadi, Appeals Chamber Judgment, IT-94-1-A, 15 July 1999, paras
11644.
53
ICTY, The Prosecutor v Tihomir Blaki, Trial Chamber Judgment, IT-95-14, 3 March 2000, para 149.
There was no appeal on this aspect of the finding.
54
ICTY, Naletili, above n 12, para 214. There was no appeal on this aspect of the finding.
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authors view it is necessary that the foreign state has effective control over the conduct
which in turn establishes the armed groups effective control of the territory in question.55
Others object, saying that overall control by the foreign state makes IHL of IACs applicable, and once it is applicable, what has to be determined is only whether the armed group
had effective control over the territory.56 To justify their position, they could invoke the
jurisprudence of the ECtHR which, in the Loizidou case, considered that Turkeys overall
control over the authorities of the Turkish Republic of Northern Cyprus was sufficient to
find the former responsible for human rights violations committed by the latter. Indeed, the
victims of those violations were considered as falling under Turkeys jurisdiction.57 In this
authors view, the difference between this and the question discussed herewhether IHL
of military occupation appliesis that human rights obligations had to be complied with
by the authorities of the Turkish Republic of Northern Cyprus (assuming they are bound
at all by them) on their own territory, while the IHL of military occupation must only be
applied in a foreign territory. It is therefore entirely conceivable that it is sufficient that a state
has overall control over unrecognized authorities in another state to make it responsible
for their human rights violations, while to make IHL of military occupation applicable, it
needs effective control over conduct triggering such applicability.
h.Joint control bya coalition

24 When an occupation is implemented by a coalition of states, which jointly exercise effective control over a territory as discussed above, but without any one of them individually exercising the necessary threshold of authority,58 a mechanical application of the law
designed for individual Occupying Powers would deprive the population of the territory
of the benefit of the rules of IHL of military occupationand indeed of all rules of GC IV
on protected civilians (see MN 43 and 44). It is therefore suggested that we should aggregate the presence and actions of different coalition forces to determine whether the IHL
of military occupation applies. If it does, each coalition member could be considered to be
functionally bound by the obligations of an Occupying Power in its actions, where any of
the following conditions aremet:
if these actions contribute to the necessary control of the coalition, or would typically
be carried out by an Occupying Power;or
if they are actions the coalition is required to take under positive obligations foreseen
by IHL of military occupation.59
55
That effective control is here the decisive test is also the opinion of the ICRC Expert Meeting, above n 1,
at 23, and Benvenisti, above n 8, at 61, who justifies his position by the obligations to protect. In this authors
view, the effective control test also applies to obligations to respect.
56
Ferraro, above n 12, at 15860.
57
ECtHR, Loizidou v Turkey, Judgment, 18 December 1996, at 22356, para 56; and ECtHR, Cyprus v
Turkey, Judgment, 10 May 2001, para77.
58
In the case of Iraq in 2003 and 2004, UNSC Res 1483 (2003) considered in preambular para 14 that
the US and the UK were Occupying Powers, while other coalition members were explicitly mentioned in
preambular para 15 as not being Occupying Powers. As the US and the UK had in their respective areas of
occupation sufficient control through their forces to fulfil individually the criteria of an Occupying Power,
this did not raise major problems, while it would if no coalition partner had on its own sufficient control to be
an Occupying Power underIHL.
59
Drmann and Colassis, above n 32, at 3024; Ferraro, above n 12, at 1612; Spoerri, above n 14, at 190;
L. Lijnzaad, How Not to Be an Occupying Power:Some Reflections on Security Council Resolution 1483
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II.Loss ofeffective control bythe adverseparty

Most authors, manuals, and judicial decisions discuss loss of control or authority by the 25
sovereign or previous administrator over the territory, or substitution by the Occupying
Power, as a separate criterion.60 One might doubt whether loss of effective control is not
inherent in the first requirement, namely, acquisition of territorial control by the enemy.
However, as it is sufficient under this first requirement that the Occupying Power is in a
position to exercise control over the territory, followed by positive obligations to exercise
such control, those obligations incumbent upon the enemy power would be neither justified nor necessary if the authorities previously in control could fulfil all governmental
functions over such a territory.
The mere fact that the administration or local authorities of the territorial sovereign 26
continue to exercise functions of government does not bar the existence of an occupation. On the contrary, the rules of IHL on military occupation largely require that local
authorities be permitted to function.61 Such possible power-sharing is generally qualified
as vertical, whereby the Occupying Power maintains control over the local administration in the occupied territory and has the final say.62 Horizontal power sharing (where the
occupied authority and the occupier cooperate on an equal footing), on the other hand,
would be incompatible with occupation, because it would cast doubt on the ability of the
Occupying Power to impose its will.63 The present writer objects to the view that occupation is simply a vertical relationship, as one has to recall that IHL requires local authorities
have the final say in many fields (e.g. private law or education). In addition, the decisive
distinction cannot be that between the ousted sovereign and local authorities. In a unitary
state, primary education and sewage may depend upon the central government, while
in a decentralized state these responsibilities may fall on municipalities. In both cases
the Occupying Power has the same obligation to allow the existing system to function.
Decisive for the existence of an occupation is the fact that the Occupying Power could, if
it so wished, have the final say in all respects. If it is not IHL or its political decision but its
factual inability which hinders it from having the final say, the territory is not occupied.
This ability to have the final say in turn is based upon the presence of the occupying forces.
The local sovereign or authorities have no control over the presence of the occupying
forces, whose conduct is regulated by the Occupying Power and IHL, not by the authorities of the occupiedstate.
What does not exist cannot be replaced. The question therefore arises whether the 27
rules of IHL on military occupation apply when the ousted sovereign lacked control
even before the Occupying Power established control. First, as discussed below in relation
to the Israeli argument against the applicability of GC IV to the West Bank and Gaza
(see MN 36), the local authorities that are replaced need not necessarily be those of the
and the Contemporary Law of Occupation, in L. Lijnzaad, J.van Sambeek, and B. Tahzib-Lie (eds), Making
the Voice of Humanity Heard (Leiden:Nijhoff, 2004), at298.
60
The Hostages Trial, above n 34, at 55; Bothe in ICRC Expert Meeting, above n 1, at 38; R. Kolb and S. Vit,
Le droit de loccupation militaire:perspectives historiques et enjeux juridiques actuels (Brussels:Bruylant, 2009),
at 139; Dinstein, above n 19,at39.
61
See Art 43 Hague Regulations and Ch 69 of this volume. See also Art 6 para 3 GC IV, which implies
that an occupation may exist even when the Occupying Power does not exercise the function of government
in a territory.
62
63
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legitimate sovereign. They may be those of a third state, including a previous Occupying
Power (except if the sovereign liberates its own territory), or of an armed group. It does
not matter whether that group was fighting against the later Occupying Power independently of the occupied country, or alongside the Occupying Power.64 What counts are the
facts:(i)establishment of control, (ii) during an IAC, (iii) by a state over a territory which
was not its own before the IAC. Indeed, conquest is no longer a title for acquisition of territory in international law.65 Under this approach, establishing effective control over (parts
of) the territory of a failed state constitutes military occupation.66
III.Lack ofconsent
28 Consent by a state to the presence of foreign troops on its territory and their exercise of
control over that territory not only makes the rules of IHL on military occupation inapplicable,67 but also hinders the applicability of all other rules of IHL of IACs. Even the
applicability of IHL of IACs in the case of belligerent occupation without armed resistance, discussed below, presupposes lack of consent by the territorial state. The consent
must obviously be given before the foreign military presence begins. Subsequent consent
does not hinder the applicability of the rules of IHL on military occupation as soon as the
condition of control is fulfilled.68 Whether subsequent consent ends an occupation is dealt
with in Chapter74 of this volume. According to experts consulted by the International
Committee of the Red Cross (ICRC), the consent must be genuine, valid, and explicit.69
Some add that the consenting state must in addition have effective control over the
territory.70 It is argued that only an authority with de facto control over the territory just
before the occupation can validly consent.71 De jure authority without de facto control is not
sufficient. In this authors view, mere consent by authorities with de facto control against the
will of the de jure authority is equally insufficient.
29
To evaluate the validity of consent (for the purposes of determining whether IHL of
military occupation applies), it is suggested that recourse should be made to the rules of
the law of treaties on the validity of a states consent to be bound by a treaty, as codified
in the Vienna Convention on the Law of Treaties (VCLT). Indeed, if consent is valid for
the purposes of the law of treaties, then it would be unimaginable that it would not be
valid for the purpose of hindering the application of IHL of military occupation.72 An
alternative could be to refer to consent in the law of state responsibility as a circumstance
precluding wrongfulness,73 although occupation is not unlawful under IHL. However,
the discussion of the International Law Commission (ILC) on when consent precludes
64
See, for the case where an armed group which had effective control is ousted by foreign forces, Bothe,
above n 19, at 30, fn 19, who considers that even if the territorial state consents, IHL of military occupation
applies (provisionally) when the authority of the territorial government is not re-established.
65
M.N. Shaw, International Law (6th edn, Cambridge:CUP, 2008), at502.
66
This approach is implicitly shared by those who consider that for the purposes of the IHL of military
occupation, the absence of consent must be presumed in the case of a failed state (see below MN 31), and by
Australia when it considered the IHL of military occupation to apply to its presence in Somalia (see below
MN 54).
67
ICRC Expert Meeting, above n 1, at 21; Benvenisti, in MPEPIL, above n 28, para 1; UK Manual, above
n 16, para 11.1.2.
68
See also Art 47GCIV.
69
ICRC Expert Meeting, above n 1, at 21; Spoerri, above n 14, at190.
70
71
Bothe, above n 19,at30.
72
73
ILC Articles on State Responsibility, Art20.
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wrongfulness insists that the validity of the consent is not a question of state responsibility
but depends on the primary rules concerned,74 or on the rules of international law relating to the expression of the will of the State.75 The ILC explicitly suggests that the principles concerning the validity of consent to treaties provide relevant guidance.76 Special
Rapporteur Roberto Ago went even further, writing that the end-result of that consent is
clearly the formation of an agreement.77
To be valid, the consent must not be tainted by a reason of invalidity under the VCLT.78 30
For the applicability of the law of occupation, it is particularly important to determine
whether consent obtained by a foreign state by coercion hinders the application of IHL
of military occupation. The law of treaties accepts that international relations continue to
be based on power. Therefore, consent to a treaty and the treaty itself are invalid because
of coercion only if the consent to be bound has been obtained through a threat or use of
force, contrary to the United Nations (UN) Charter.79 As for the state organ which must
give consent, it must be able to bind the state under international law.80 Whether it is
competent under the constitutional law of the state concerned is irrelevant,81 except in
the case of a violation of a constitutional rule of fundamental importance which would be
evident to any state.82 In the discussion about the legality of military assistance on request,
which parallels in many respects the question discussed here (although it concerns jus ad
bellum), many nevertheless suggest a more restrictive approach, i.e. that only the highest
authorities of a state can invite foreign armed forces onto its territory.83 This would, however, once more imply that a treaty providing for such presence would be valid under the
law of treaties, while the consent to the presence would not be valid for jus ad bellum or
jus in bello purposes.
Furthermore, consent must be explicit, not presumed. Therefore, it cannot be given by 31
a failed state lacking effective governmental authorities.84 Some add that consent must be
given by the recognized government of a recognized state.85 As the determination of an
occupation is a question of fact, the present writer would require consent by the de facto
government of the state and would not consider consent by an ineffective de jure government, perhaps in exile, as sufficient.
Among scholars, there is a tendency to diminish the role of consent by the territorial 32
state as barring the applicability of the IHL rules on military occupation.86 They point
out that the same conflict of interest, covered by these rules, exists when the territorial
state consents to the military presence on its territory,87 or that what counts today is
the non-allegiance of the population.88 However, it is not clear whether these remarks
are made de lege lata. The present author would insist that the IHL rules on military
75
76
Ibid, Commentary, paras 4 and 8 to Art20.
Ibid, para5.
Ibid, para6.
Eighth report on State responsibility by R.Ago, UN Doc A/CN.4/318, YILC (1979), vol II, part1,
para57.
78
79
80
Art 52VCLT.
Art 7VCLT.
81
Art 27VCLT.82 Art 46VCLT.
83
See discussions of the Institute of International Law on Intervention by Invitation, G. Hafner Rapporteur,
74 Yearbook of the Institute of International Law (2011) 179, at 234, 235, 252, and 25873. In the resolution
finally adopted, the issue is not mentioned (ibid, at360).
84
85
86
ICRC Expert Meeting, above n 1, at201.
87
A. Roberts, What Is a Military Occupation?, 55 BYBIL (1984) 261, at 300; Bothe, in ICRC Expert
Meeting, above n 1, at 37; Zwanenburg, above n 19, at 109 (without drawing the conclusion that IHL of military occupation applies).
88
Benvenisti, above n 8, at5960.
74
77
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occupation apply even if the local population (perhaps at a first stage) welcomes foreign
troops, or if the latter argue that they are acting merely in the interests of the local population and of the adverse state.89 Any other interpretation would lead to endless controversies over the applicability of IHL, based on subjective judgements and considerations of
legitimacy. Conversely, it seems problematic to allow a criterion as difficult to establish as
that of the allegiance of the population or a conflict of interest, to turn a foreign military
presence to which the government of the territorial state has consented into a belligerent
occupation. Does this imply mandatory periodical referendums regarding any foreign
military presence? In any case, no precedent is known in which IHL rules on military
occupation were applied (or claimed to apply de jure) after the host state had given its valid
consent (see however MN 35 below).90
33
The conclusion of a ceasefire or armistice cannot imply consent precluding the applicability of the IHL rules on military occupation, even if such agreement specifically allows
one belligerent to control territory of another which it did not control before the outbreak
of hostilities.91 Otherwise, the archetype of an occupied territory, the Israeli-occupied
Palestinian territory, would not be occupied because the Israeli presence in the West Bank
and the Gaza Strip is implicitly permitted by the 1967 ceasefire agreement.92 Similarly,
the fact that the 2008 ceasefire between Georgia and Russia brokered by France allowed
a provisional Russian military presence on undisputed Georgian territory,93 did not make
the law of military occupation inapplicable to such territory. Some authors justify this
result by reference to Articles 6/6/6/7 common to the Geneva Conventions (which state
that agreements between belligerents cannot deprive protected persons of rights under
the Geneva Conventions) and Article 47 GC IV (which states the same for agreements
between an Occupying Power and local authorities).94 In this authors view, this reasoning
is not convincing (although the result is correct). Article 47 does not apply to agreements
(e.g. a ceasefire, an armistice, or a peace treaty) between the Occupying and Occupied
Powers. As for Article 6/6/6/7, it hinders the parties from modifying the rules of IHL on
military occupation, but not from ending an occupation, e.g. by concluding a peace treaty
which transfers sovereignty of the occupied territory to the former Occupying Power.
Amore convincing argument for the aforementioned conclusion is based on a systematic interpretation of the IHL rules on occupation read in conformity with subsequent
practice. Under Article 6 GC IV, and even more under Article 3(b) Additional Protocol
(AP) I, the rules of IHL on military occupation continue to apply beyond the general
Kolb and Vit, above n 60, at789.
91
Pictet Commentary GC IV, at 22; Roberts, above n 87, at 267; M. Bothe, Occupation after Armistice,
in R. Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam:Elsevier, 1993), vol III, 761, at
763. Contra Dinstein, above n 19, at 36. Bothe, above n 19, at 27, considers that IHL of military occupation
applies only if the armistice referstoit.
92
United States Department of State:Background on Israel, Bureau of Near Eastern Affairs (22 February
2010), available at <http://www.state.gov/r/pa/ei/bgn/3581.htm>. For an overview of the facts see ICJ, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004,
paras 735; HRCouncil, Report of United Nations Fact-Finding Mission on the Gaza Conflict, Human
Rights in Palestine and other Occupied Arab Territories (25 September 2009)UN Doc A/HRC/12/48,
para177.
93
Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG), Report,
30September 2009, vol II, at 219; Human Rights Watch, Up in Flames:Humanitarian Law Violations and
Civilian Victims in the Conflict over South Ossetia, Report, 23 January 2009,at25.
94
Kolb and Vit, above n 60,at92.
89
90
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close ofmilitary operations, which is most often based upon a ceasefire or an armistice. If
ceasefires or armistices ended an occupation, the aforementioned provisions would largely
lack their desired effect.
For similar reasons, surrender, which implicitly allows a belligerent to occupy the terri- 34
tory of the surrendering adversary, cannot count as consent barring the applicability of the
rules of IHL on military occupation.95 While the Hague Regulations were not considered
to apply to the post-surrender occupation of Germany and Japan following the Second
World War, the Geneva Conventions would now apply,96 which results from the intention
of the drafters.97
If a state withdraws its consent to a foreign military presence and the foreign troops 35
nevertheless stay on, this not only constitutes an aggression under jus ad bellum,98 but also
turns the presence into an occupation,99 provided that the foreign forces control the territory where they are present and hinder control of the territorial state under the criteria
discussed above.100 If the territorial state defends itself against this aggression, Article 2
paragraph 1 governs the occupation, otherwise Article 2 paragraph 2 GC IV applies.101
IV.Irrelevance ofother criteria

At least for a belligerent occupation during, or resulting from, an armed conflict, in which 36
territory which was not previously controlled by it fell under the control of a belligerent,
it is equally irrelevant whether the enemy was sovereign over that territory.102 Israel argues
that the West Bank and Gaza, which it occupied in 1967, are not occupied territories
because at the time of occupation they were not the territory of a High Contracting Party
as required by Common Article 2 for the applicability of the Geneva Conventions.103 The
ICJ rejected this argument (at least for an occupation occurring during an IAC under
Common Article 2 paragraph 1), stating that it was sufficient that Jordan and Israel (the
ICJ only had to deal with the West Bank) were parties to the Geneva Conventions and
engaged in an IAC which led to the occupation of the West Bank.104 The EECC correctly
held that the ICJs finding (that it is irrelevant whether the occupied territory belongs
to another High Contracting Party) applies even where the occupied territory is subsequently found to have belonged to (but was not controlled before the conflict by) the
belligerent who occupied it.105 This author suggests an exception in the case where a state
liberates its own territory, which was occupied by its adversary during a previous armed
Pictet Commentary GC IV, at 22; Dinstein, above n 19, at323.
Kolb and Vit, above n 60, at 959; Roberts, above n 87, at 2701; von Glahn, above n 37, at 281,283.
97
Final Record, vol II-A, at6234.
98
See Definition of Aggression, UNGA Res 3314 (XXXIX), Art3(e).
99
Dinstein, above n 19, at 37, 42; Bothe, above n 19, at 32; Koutroulis, above n 12, at 878, who rightly
mentions that this is one of the few situations in which jus ad bellum influences jus inbello.
100
In DRC v Uganda, above n 16, after the ICJ found that Congo had withdrawn its consent to the presence
of Ugandan troops (para 53), it started to analyse whether the Ugandan presence satisfied its requirements for
effective control over the territory (paras 17280).
101
See for the latter case Kolb and Vit, above n 60, at 7981, who mention Namibia as an example.
102
In this respect the present author disagrees with ICRC Commentary APs, para 112, when it states that
occupation of a territory which has not yet been formed as a state is covered by Art 1(4) AP Ibut not by Art
2 common to the GCs, although this interpretation appears (mistakenly) in the preparatory works ofAPI.
103
M. Shamgar, The Observance of International Law in the Administered Territories, 1 IsrYBHR (1971)
26277.
104
ICJ, Legal Consequences of the Construction of a Wall, above n 92, paras 90101.
105
EECC, Central FrontEthiopias Claim No 2, Partial Award, 28 April 2004, paras 28 and29.
95
96
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conflict and remained occupied until the most recent armed conflict.106 However, if the
sovereignty over the territory is contested, the IHL rules on military occupation apply,107
as they do in all cases in which a state invades territory it considers to be its own, e.g.
when Argentina invaded the Falkland/Malvinas islands in 1982,108 if such ownership is
contested by the adversary.
37
As for every other rule or concept of IHL, any jus ad bellum consideration, such as
whether the occupation is lawful or unlawful, is irrelevant for the determination of
whether a territory is occupied.109 Even territory coming under the control of a belligerent
exercising its right to self-defence, or which is authorized by the UN Security Council to
use force, is an occupied territory (the issues of a UN authorized occupation and occupation by UN forces will be discussed below at MN 38, 40, and 54). Additionally, Article 47
GC IV clarifies that no annexation by the Occupying Power, and no agreement concluded
with the authorities of the occupied territory subsequent to the occupation (to be distinguished from consent by the Occupied Power, discussed above at MN 2835), can alter
the status of a territory as occupied.
38
While it is clear that UN Security Council authorization for the use of force does not
make the rules of IHL on military occupation inapplicable,110 it is more controversial when
the UN Security Council has authorized the very presence of the Occupying Power. Thus,
it has been argued that in such cases this presence is not an occupation (but in the case of
Iraq in 20034 the Council explicitly stated that at least the US and the United Kingdom
(UK) were Occupying Powers). Some authors argue that the Security Council may end
an occupation altogether, not by changing the facts on the ground but by requalifying a
belligerent occupation as an international transitional administration.111 Under Article
103 of the UN Charter, UN Security Council resolutions prevail over any other international obligation,112 including the obligations that flow from military occupation under
IHL. According to the letter of the Article, this is at least the case for treaty obligations.113
Obviously, one might argue that definitions are not an obligation and therefore cannot
be overridden by the Security Council. However, the determination that a territory is
occupied leads to certain IHL obligations, and the determination that the territory is
not occupied would mean that such obligations no longer exist and thus would override
them in substance. Many argue that the UN Security Council cannot derogate from jus
cogens.114 However, there is no centralized organ that could determine that a resolution
derogating from IHL is contrary to a norm of jus cogens. In addition, a norm of jus cogens is
defined by Article 53 VCLT as accepted and recognized by the international community
of States as a whole as a norm from which no derogation is permitted. If a resolution was
approved by at least nine members of the UN Security Council and not opposed by one
Implicitly Benvenisti, above n 8, at 43, requiring that the Occupying Power has no title.
108
109
Ibid,at59.
Roberts, above n 87, at280.
The Hostages Trial, above n 34,at59.
110
Drmann and Colassis, above n 32, at302.
111
S. Vit, Lapplicabilit du droit international de loccupation militaire aux activits des organisations
internationales, 86 IRRC 853 (2004) 9, at 28. See also M. Ottolenghi, The Stars and Stripes in Al-Fardos
Square:The Implications for the International Law of Belligerent Occupation, 77 Fordham Law Review
(2004)2177.
112
ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v US), Order, 14 April 1992, para126.
113
For an opinion that this does not cover obligations under customary international law, see ibid,
Dissenting Opinion of Judge Bedjaoui, para29.
114
See extensively Koutroulis, above n 12, at 10013.
106
107
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permanent member (see Article 27(3) of the UN Charter), it could violate a norm of jus
cogens as defined by the VCLT only if it was clearly established that before the resolution
was adopted, the norm derogated from constituted jus cogens. Indeed, the states adopting
the resolution apparently considered that derogation from the IHL norm is permitted,
otherwise they would not have voted in favour of the resolution. This would cast serious
doubts on whether the international community of states as a whole indeed considers that
no derogation from the IHL norm is permitted. Lastly, the question arises whether the
rule setting the definition of occupation belongs to jus cogens. Some answer affirmatively,
because the definition of occupation is essential for the operation of the protective rules,
some of which belong to jus cogens.115
Nevertheless, in this authors opinion, any derogation from the rules of IHL by the UN 39
Security Council must be explicit, and its resolutions must be interpreted whenever possible in a manner compatible with IHL. The mandate of the Security Council to maintain
international peace and security enforces jus ad bellum. Just as a state implementing jus ad
bellum by using force in self-defence must comply with IHL, any measure authorized by
the Council must be implemented in a manner that respects IHL.116
Adistinct issue is whether the rules of IHL on military occupation apply at all to a 40
UN-led territorial administration. Apart from the general controversies whether the UN
or other international organizations are bound by IHL (see Chapter1 of this volume, MN
1619), some object to the mere possibility that UN peacekeeping forces could be subject
to the obligations of an Occupying Power.117 Significantly, the UN Secretary-Generals
Bulletin on Observance by United Nations Forces of International Humanitarian Law,
which refers to many rules UN forces must respect under IHL while engaged as combatants in armed conflicts, does not mention one rule of IHL on belligerent occupation.118
Opponents to the applicability of IHL in such a case argue that the rights and obligations accruing to Occupying Powers under IHL flow from the conflict inherent in the
relationship between traditional Occupying Powers and the population under occupation. Therefore, it follows that the same rights and obligations are not relevant to the
altruistic nature of a peacekeeping operation, which is deployed in conformity with the
general interest.119 They argue, as a protective force, peacekeepers are acceptedif not
welcomedby the local population, and thus do not require the strictures of IHL. This
rather rosy view of the relationship between peacekeepers and the local population is not
always borne out by reality. The level of altruism or good intentions may be difficult to
measure, and will change according to ones perspective; it is not a sound basis for determining whether IHL applies to a given conflict. If this was decisive, why should operations carried out by individual states or regional organizations claiming their motives
are purely altruistic be subject to IHL? In this writers opinion, denying the applicability
of IHL of military occupation to UN peacekeeping operations based on the alleged
altruistic nature of the operation sometimes disregards reality and always mixes a jus ad
Ibid, at114.
See T. Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 AJIL (1991) 104, at106,
and, for the ECHR, ECtHR, Al-Jedda v United Kingdom, Judgment (Grand Chamber), 7 July 2011, para 102.
117
118
Gasser, above n 19, at272.
UN Doc ST/SGB/1999/13, 6 August1999.
119
D. Shraga, The United Nations as an Actor Bound by International Humanitarian Law, in L. Condorelli,
A-M. La Rosa, and S. Scherrer (eds), Les Nations Unies et le droit international humanitaire, Actes du Colloque
international loccasion du cinquantime anniversaire des Nations Unies, Genve, 19, 20 et 21 octobre 1995
(Paris:Pedone, 1996) 317, at 328; Vit, above n 111,at19.
115
116
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bellum argument into whether jus in bello applies.120 Another line of argument holds that
IHL of belligerent occupation cannot apply to transitional international civil administrations because, under their Security Council mandate and subsequent practice, such
administrations make changes to local legislation and institutions which would not be
permitted under the IHL of military occupation.121 This argument however invites the
question whether the territory over which the transitional civil administration is established is an occupied territory for which such changes are not admissible. Arguably,
when the UN or a regional organization has effective control or power over a territory
without the consent of the sovereign of that territory, it is an occupying force.122 When
the sovereign consents and allows a foreign power to administer its territory, the rules of
IHL on military occupation do not apply. However, as long as rules of international law
for international administration not qualifying as occupation are lacking and subsidiary
to the UN Security Council resolution establishing the international administration, the
latter should be guided, by analogy, by the rules of belligerent occupation, with which it
shares a commonality.123
V.Adistinction betweeninvasion and occupation?

41 Many authors, military manuals, the ICJ, and the EECC distinguish between the invasion phase and the occupation phase.124 The proponents of this distinction argue that the
rules of GC IV pertaining to occupied territories apply only during the latter phase.125
Their argument is based mainly on a certain understanding of Article 42 of the Hague
Regulations and the argument that the concept of occupation under GC IV must necessarily be the same as under the Hague Regulations (see MN 8). In addition, as discussed
above, occupation must involve some control, while mere presence does not imply control.
Lastly, in other international instruments, occupation is explicitly dealt with as a consequence of an invasion, which suggests that the two phases cannot coexist.126 To avoid
Vit, above n 111, at 27, replies that the Security Council does not derogate from IHL but creates a situation to which IHL on its own terms does notapply.
121
Ibid,at24.
122
Benvenisti, above n 8, at 63; M. Hoffman, Peace-Enforcement Actions and Humanitarian
Law: Emerging Rules for Interventional Armed Conflict, 82 IRRC 837 (2000) 193, at 203 and 204;
B. Levrat, Le droit international humanitaire au Timor oriental:entre thorie et pratique, 83 IRRC 841 (2001)
77, at 956; J. Cerone, Minding the Gap:Outlining KFOR Accountability in Post-Conflict Kosovo, 12 EJIL
(2001) 469, at 4835; Spoerri, above n 14, at 191. Roberts, above n 87, at 291 (citing D.Bowett, United Nations
Forces:ALegal Study of United Nations Practice (1964)), writes that most or all customary or conventional laws
of war wouldapply.
123
M. Sassli, Droit international pnal et droit pnal interne:le cas des territoires se trouvant sous administration internationale, in M. Henzelin and R. Roth (eds), Le droit pnal l preuve de l internationalisation
(Paris/Geneva/Brussels:L.G.D.J./Georg/Bruylant, 2002) 119, at 1419; Vit, above n 111, at 2933; M.
Kelly etal, Legal Aspects of Australias Involvement in the International Force for East Timor, 83 IRRC 841
(2001) 101, at 115; Norwegian Institute of International Affairs and Lessons-Learned Unit of the Department
of Peacekeeping Operations, Comprehensive Report on Lessons-Learned From United Nations Operation in
Somalia: April 1992March 1995 (New York: Department of Peacekeeping Operations, 1995), para 57.
124
US Manual FM 27-10, above n 28, para 352; Zwanenburg, above n 19, at 1078; M. Zwanenburg,
Challenging the Pictet Theory, 94 IRRC 885 (2012) 30; Bothe, IRRC, above n 37, at 379; Koutroulis, above
n 12, at 4769; G. Schwarzenberger, The Law of Belligerent Occupation:Basic Issues, 30 NJIL (1960) 10,
at 1821; ICJ, DRC v Uganda, above n 16, paras 172, 173, and 219; EECC, Central FrontEritreas Claims,
above n 43, para57.
125
Dinstein, above n 19, at 412; Gasser, above n 19, at2767.
126
Bothe, IRRC, above n 37, at 378. See also ICRC Commentary APs, para1699.
120
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unsatisfactory results, some of the proponents of the distinction nevertheless admit that
occupation immediately follows the invasion phase.127
On the contrary, Jean S.Pictet, who is followed by many experts, the ICRC, and the 42
ICTY, holds that the concept of occupation under GC IV is different from that of the
Hague Regulations:
There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without
any intention of staying there must respect the Conventions in its dealings with the civilians it
meets.128
This approach (hereafter referred to as the Pictet theory) may be justified by several,
partly alternative, arguments. First, a systematic interpretation of GC IV, taking its object
and purpose into account, leads to the conclusion that enemy control over a person in
an invaded territory is sufficient to make this person protected by the rules of GC IV on
occupied territories. Secondly, even if occupation is defined purely territorially, civilians
falling into the power of the enemy during an invasion perforce find themselves on a
piece of land controlled by that enemy. The main objection to the Pictet theory is that it
requires from invading forces what they cannot deliver. Followers of Pictet reply that the
very wording of the provisions of GC IV (and arguably that of the Hague Regulations) is
flexible enough not to require what is impossible in the invasion phase. Alternatively, the
concept of control could be interpreted functionally, requiring a different threshold for
different rules. Lastly, some rules of Section III of Part III of GC IV may be seen as conferring on invading forces certain rights, e.g. a legal basis for security measures, internment,
or the requisition of labour, a point completely neglected by adherents and critics of the
Pictet theory. Arguably, otherwise, invading forces would have simply no legal basis to
arrest and detain civilians who threaten their security.
a.The systematic argument

Most of the rules of GC IV, i.e. Articles 27141, forming Part III of the Convention, ben- 43
efit only protected civilians, as defined in Article 4.This provisionreads:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are not nationals.
To explain why inhabitants of invaded territories are protected civilians by arguing that
they are in the hands of an Occupying Power is circular.129 However, Article 4 equally
covers persons who find themselves in the hands of a party to the conflict. When inhabitants of an invaded territory fall under the control of invading forces, e.g. by arrest and
detention, they are without a doubt in the hands of a party to the conflict of which they
are not nationals, and are therefore protected persons. As such, they must benefit from
EECC, Central FrontEritreas Claims, above n 43, para 57; Bothe, IRRC, above n 37, at3941.
Pictet Commentary GC IV, at 60, followed by ICRC Expert Meeting, above n 1, at 246; ICRC, Report
to the 31st International Conference of the Red Cross and Red Crescent, International Humanitarian Law and
the challenges of contemporary armed conflicts, ICRC, Geneva, October 2011, available at <https://www.icrc.
org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl
-challenges-report-11-5-1-2-en.pdf>; Kolb and Vit, above n 60, at 6586; Naletili, above n 12, at 21922;
Sassli, IRRC, above n 48, at4250.
129
Zwanenburg, IRRC, above n 124, at323.
127
128
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some rules of Part III of GC IV dealing with the status and treatment of protected
persons. Those rules are separated into rules applicable to aliens who find themselves
on non-occupied territory of a state (Section II) and those applicable to occupied territories (Section III). The two categories are mutually exclusive, and must arguably
cover all possible situations in which a civilian is in enemy hands. As for Section I, its
title, referring to Provisions common to the territories of the parties to the conflict
and to occupied territories, can be read as encompassing not only the invading states
own territory and any occupied territories, but also any other territory of a party to the
conflict.130 This issue is discussed in depth in Chapter52 of this volume. According to
the present author, under a systemic interpretation, the term common in the title of
Section Imust be considered to refer to what appears in the following Sections II and
III. Furthermore, the travaux prparatoires show that Part III was intended to cover
(only) two categories of persons:aliens on the territory of a party to the conflict, and the
population of occupied territories.131
44
Therefore, defenders of the Pictet theory argue, if invaded territory was not considered occupied under the categories of GC IV, protected civilians falling into the
hands of the enemy on invaded territory would not be protected by any rule of Part
III.132 However, their argument continues, there is no possible reason why those persons need or deserve less protection than other civilians who are in the power of the
enemy, and it is unimaginable that the Conventions drafters would have left such a
gap between foreigners found in a party to the conflicts own non-occupied territory
and persons found in the territory occupied by a party to the conflict.133 To take an
example mentioned by Pictet,134 it seems absurd that the deportation of civilians would
not be prohibited in the invasion phase by GC IV,135 but would be absolutely prohibited
once the invasion turned into an occupation. Inhabitants of a territory under invasion
are enemy nationals encountering a belligerent on their own territory, independently
of their will, which is precisely the situation for which the rules of IHL on military
occupation weremade.
130
Many experts therefore suggest that Section Ialready applies during an invasion phase (ICRC Expert
Meeting, above n 1, at26, and Ch 52, MN 4448, of this volume).
131
Committee III, Report to the Plenary Assembly, Final Record, vol II-A, at 821:Part III constitutes the
main portion of our Convention. Two situations presenting fundamental differences had to be dealt with:that
of aliens in the territory of a belligerent State and that of the populationnational or alienresident in a
country occupied by the enemy. The ICRCs preliminary remarks to the text of the GCs are even more
explicit:[Convention IV] distinguishes between foreign nationals on the territory of a party to the conflict,
and the population of occupied territories. It is divided into five Sections. Section Icontains provisions common to the above two categories of persons [] (The Geneva Conventions of 12 August 1949 (Geneva:ICRC,
2010), at32).
132
Benvenisti, in MPEPIL, above n 28, para 6; Koutroulis, above n 12,at63.
133
Admittedly, as those who defend the distinction between invaded and occupied territory mention (see
e.g. Zwanenburg, IRRC, above n 124, at 334), other distinctions found in IHL, e.g. between IACs and
NIACs, or between protected and other civilians, equally lead to gaps in protection. However, those other
distinctions may be explained from the perspective of states keen to protect their sovereignty and reluctant to
accept international rules governing how they behave on their territory and/or towards their own nationals.
Once they have accepted international rules protecting enemy nationals on their own and on occupied territory, a legal black hole between those two categories cannot be explained, even from the perspective of states
keen to protect their sovereignty.
134
Pictet Commentary GC IV,at60.
135
Art 49 para 1 GC IV applies only in occupied territories.
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b.Is it sufficient toexercise control overa person or overthe piece ofland onwhich
that person isfound?
To avoid such a gap in protection, Pictet argues that to trigger the applicability of the 45
provisions of GC IV on occupied territories and apply them to a particular person, control over that person (in a territory which is not the invaders own) must be sufficient.136
Many object and claim that according to the ordinary meaning of the terms (and Article
42 of the Hague Regulations), occupation must include control over territory.137 Indeed,
a person may be arrested or detained but not occupied. To consider this objection, one
might suggest a functional approach to the amount of territory that can be occupied (see
MN 21). The main objection against this interpretation is that many rules of GC IV, in
particular those setting out positive obligations of an Occupying Power, cannot possibly
be respected by invading forces, and unrealistic interpretations of IHL rules must be
avoided.138
c.Aflexible understanding ofthe obligations ofan OccupyingPower?

Followers of the Pictet theory counter the criticism that it leads to unrealistic demands by 46
replying that the rules of IHL of military occupation are not strict obligations of result.139
To take one example, under Article 50 GC IV, a provision often mentioned by adherents
of the distinction between invasion and occupation,140 an Occupying Power has the obligation to facilitate, with the cooperation of the national and local authorities, the proper
functioning of childrens educational institutions. First and foremost this obligation prohibits interfering with the activities of those institutions.141 Forces invading a village are
perfectly capable of refraining from requisitioning the only school located in that village.
Admittedly, supporting such institutions might require a certain degree of control and
authority; yet support will depend upon the circumstances and the capabilities of the
invading troops. According to the clear wording of Article 50 (facilitate), supporting
these institutions is an obligation ofmeans.
d.Afunctional understanding ofthe concept ofoccupation itself?

The concept of occupation itself can also be understood functionally. In this sense, a territory 47
is considered occupied for the purpose of the applicability of certain rules of IHL of military
occupation, but not for others (see for a critical analysis and some consequences Chapter 52,
MN 6372, of this volume). In particular, this approach may be defended on the arguably
distinct issue of the end of an occupation, where the Occupying Power still retains some
aspects of control after withdrawing, such as Israel after it withdrew from the Gaza Strip.142
The concept that only some rules of IHL apply during the invasion phase is not new. 48
Many authors and the EECC, who distinguish occupation and invasion, nevertheless
136
Pictet Commentary GC IV, at 601; ICTY, Naletili, above n 12, para 221. For the distinct issue when
a person is under the jurisdiction of a state, human rights bodies have considered that control over the person
abroad is sufficient:see HRCttee, General Comment 31, 26 May 2004, para 10; ECtHR, Al-Skeini and others v United Kingdom, Judgment, 7 July 2011, paras 1367; HRCttee, Lopez Burgos v Uruguay (Comm No
52/1979), 29 July 1981, UN Doc CCPR/C/13/D/52/1979.
137
Zwanenburg, IRRC, above n 124, at 32 and 34; Bothe, IRRC, above n 37,at39.
138
Zwanenburg, IRRC, above n 124, at 35; Bothe, IRRC, above n 37, at 39 and41.
139
See, for a full discussion, M.Siegrist, The Functional Beginning of Belligerent Occupation, The Graduate
Institute, Geneva, eCahiers, No 7, April 2011, at 3577, available at <http://iheid.revues.org/75?lang=en>.
140
141
Zwanenburg, IRRC, above n 124,at35.
Pictet Commentary GC IV, at286.
142
See Ch 74, MN 40, and ICRC Expert Meeting, above n 1, at313.
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admit that some rules of GC IV already apply during invasion.143 Pictet himself distinguishes the Hague Regulations from GC IV, arguing that for the latter, the word occupation [] has a wider meaning than it has in Article 42 of the Hague Regulations,144
which implies that his theory does not apply to the Hague Regulations. However, one
might argue that an invader must already respect the prohibition in Article 44 of the
Hague Regulations, which states that a belligerent is forbidden to force the inhabitants of
territory occupied by it to furnish information about the army of the other belligerent.145
49
Others, including the ICTY,146 want to distinguish between the rules protecting
persons147 and those protecting property, with only the former applying during the invasion phase. Pictet writes:So far as individuals are concerned, the application of the Fourth
Geneva Convention does not depend upon the existence of a state of occupation within
the meaning of the Article 42 [Hague Regulations].148 One might consider however, that
property is protected because of the individuals who own it. In addition, why should, say,
Article 57 GC IV, limiting the possibility to requisition hospitals, not yet apply during the
invasion phase? This author suggests analysing which rules apply during the invasion phase
not according to pre-established broad categories, but for every rule in every case, according to the degree of control the invader exercises in that given case. This also avoids the difficulty of determining when the invasion phase turns into the occupation phase.149 For the
beginning of occupation, such an understanding would parallel the functional concept of
end of occupation, which is inherently adopted by all scholars,150 UN Documents,151 and
states that still consider Gaza to be occupied by Israel, but do not require Israel to re-enter
the Gaza Strip to maintain law and order, or to ensure that detainees in Gaza are treated
humanely by local authorities.152 Pictets remarks point in the same direction, whereby
Articles 52, 55, 56 and even some of the provisions of Articles 59 to 62 [] presuppose
presence of the occupation authorities for a fairly long period.153 Under such a functional
understanding of occupation, an invaded territory could at a certain point already be
occupied for the purpose of the applicability of Article 49 (prohibiting deportations), but
not yet occupied for the application of Article 55 (on food and medical supplies). On such
a sliding scale of obligations, which apply according to the degree of control, obligations
to abstain would be applicable as soon as the conduct they prohibit is materially possible
(respectively, the person benefitting from the prohibition is in the hands of the invading
forces), while obligations to provide and to guarantee would apply only at a later stage.
This sliding scale would also be more adapted to the fluid realities of modern warfare and
the absence of frontlines than the traditional all or nothing approach.
143
EECC, Western FrontAerial Bombardment and Related Claims, Eritreas Claims 1, 3, 5, 913, 21, 25
and 26, Partial Award, 19 December 2005, para 27; Dinstein, above n 19, at 402; Benvenisti, above n 8, at
513; Koutroulis, above n 12, at 6971; Drmann and Colassis, above n 32, at301.
144
Pictet Commentary GC IV, at 60. Critical Ferraro, above n 12, at1369.
145
Siegrist, above n 139, at667.
146
ICTY, Naletili, above n 12, paras 221 and 587. In The Prosecutor v Ivica Raji, Review of the Indictment
pursuant to Rule 61, 13 September 1996, paras 3842, the ICTY applies, however, Art 53 of GC IV during
the invasionphase.
147
148
149
Bothe, IRRC, above n 37, at3940.
150
See, e.g., Solomon, above n 21, 59; Darcy and Reynolds, above n 21, 211; and Mari, above n 21,356.
151
See UN Doc A/HRC/12/48, 25 September 2009, paras 2739, and UN Doc A/HRC/15/21, 22
September 2010, paras636.
152
As it should under Art 43 Hague Regulations and Arts 27 and 76 GC IV, respectively.
153
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The main objections to the differentiated applicability of the rules of IHL on military 50
occupation are, first, that nothing in the text of GC IV suggests such an approach and,
secondly, that the rules of IHL must be clear and foreseeable for those applying them in
the field.154 To counter the first point, applying the text (which does not clarify whether
or not it applies during an invasion) without such a differentiation leads to absurd results,
which are contrary to the object and purpose of GC IV, both when no rule of GC IV is
applicable and when all rules of GC IV are considered to apply during the invasion phase.
According to the weight one gives to the second point and the important consideration of
practicability, it may be preferable not to apply a sliding scale according to the facts of each
and every situation, but to determine ex ante which rules apply and which do not apply
during an invasion. This approach was suggested by Pictet, referred to above. Others have
suggested making a distinction between:
those rules where a significant gap in protection would exist if they were not applicable
during the invasion phase (Articles 49, 51 paragraphs 24, 52, 53, 57, and 63 GCIV);
obligations to provide or respect which are triggered by activities of the Occupying
Power and which therefore, in any event, apply during the invasion phase only if the
Occupying Power is able and willing to undertake such activities (Articles 6475, 54,
64 paragraph 1, 66, and 78 GC IV), e.g. to try or intern protected civilians;and
the obligations to provide or respect due to the mere fact of occupation (Article 43 of
the Hague Regulations and Articles 48, 50, 51 paragraph 1, 55, 56, 58, 5961, and 62
GC IV), which would not yet apply during an invasion.155
After a detailed analysis, another commentator has suggested that Articles 47, 48, 49, 51
paragraph 1, 53, 58, 59, 61 (1st sentence), 63, 6475, 76, and 78 GC IV apply during the
invasion phase, while Articles 50, 51 paragraphs 24, 52, 547, 60, 61 (starting with the
2nd sentence), 62, and 77 GC IV do not yet apply during an invasion.156
Both a flexible interpretation of the obligations and a functional understanding of 51
occupation would generally solve all the examples mentioned by those who conclude that
the Pictet theory leads to unrealistic results.157
VI.The special case ofoccupation withoutarmed resistance

Paragraph 2 of Article 2 common to the Geneva Conventions covers a situation not cov- 52
ered by paragraph 1:Despite its wording [even if the occupation meets without armed
resistance], paragraph 2 only addresses itself to cases of occupation with no a declaration
of war and without hostilities.158 In particular, paragraph 2 was introduced following the
experience of the German occupation of Bohemia and Moravia in March 1939 and of
Denmark in April 1940, which was not resisted by the Czechoslovak and Danish armed
forces because such resistance was considered useless.159 However, it equally covers, first,
the occupation of a country with no means to resist (for example, no armed forces), secondly, the continued presence of foreign armed forces once the consent of the sovereign is
AQ: cxn
not clear,
please
confirm
Zwanenburg, IRRC, above n 124,at35. 155 See Siegrist, above n 139, at4777.
Grignon, above n 17, at 13343.
157
Zwanenburg, IRRC, above n 124, at 345; Bothe, IRRC, above n 37, at 39 and41.
158
ICRC Commentary APs, para 65; Pictet Commentary GC IV, at 212; ICJ, Legal Consequences of the
Construction of a Wall, above n 92, para95.
159
Dinstein, above n 19, at 312; Kolb and Vit, above n 60,at76.
154
156
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Geneva ConventionIV
withdrawn, thirdly, cases where such presence otherwise becomes unlawful and, fourthly,
an occupation resisted by armed non-state actors not controlled by the state.160 An example of the third case was the continued presence of South Africa in Namibia after the
South African mandate terminated.161 As for the fourth case, one might also consider that
Article 2 paragraph 1 common to the Geneva Conventions applies each time a state uses
force on the territory of another state, without the consent of thatstate.
53
The foreign presence must be belligerent, present on the ground, and satisfy all other
conditions mentioned above (MN 1235). The territory must be coercively seized, which
some consider as a state of war in the material sense,162 while others call it pacific coercive
occupation but agree that IHL applies.163 The requirement that the adverse party loses
effective control must, as suggested above, be understood as referring to the final control
over the presence of military forces (see MN 26). In this sense the mere presence of foreign forces without consent is sufficient.164 Indeed, when there is no armed resistance, the
invader has even less reason and justification to interfere with or to replace the existing
administration of civil life. Arguably, contrary to paragraph 1, the wording of paragraph 2
requires that the territory occupied is that of another High Contracting Party. This would,
however, introduce an important jus ad bellum and legitimacy issue into the determination of whether IHL is applicable. If all other conditions for the applicability of IHL of
military occupation discussed above are fulfilled, in this writers view, it must be sufficient
if a state invades a territory which is not its own, even if it denies that the territory is that of
another state. The reference in paragraph 2 to the territory of a High Contracting Party may
simply be understood as clarifying in 1949 that the Geneva Conventions apply only between
parties, and that the state controlling the territory before the invasion must be a party to the
Geneva Conventions.
54
Article 2 paragraph 2 should make IHL applicable to UN-authorized operations which do
not meet armed resistance and which establish control over a territory without the consent
of the territorial state. Australia, for example, considered that IHL of military occupation
applied de jure to its UN operation in Somalia, which met with no armed resistance from the
territorial sovereign.165 More doubtful is whether the law of military occupation applies to
UN-run peacekeeping forces deployed based upon Chapter VII of the UN Charter, meeting
no armed resistance and effectively running a territory, when the territorial state does not
consent. Paragraph 2 of Article 2 common to the Geneva Conventions suggests an affirmative answer. However, most would object that paragraph 2 is an exception clause applying
IHL beyond armed conflicts, which must be limited to situations where the foreign military
presence is that of another state. In any case, the IHL of military occupation would apply only
if the international territorial administration is run or de facto controlled by military forces.
Paragraph 2 does not cover every international presence not meeting the consent of the sovereign, but only belligerent, i.e. military, presences meeting no armed resistance, the difference
being that a military occupier could overcome armed resistance if it existed, while a civilian
presence could not have doneso.
Kolb and Vit, above n 60,at76.
Ibid, at 7980. In UN Doc A/RES 2871 (XXVI), 20 December 1971, para 8, the UNGA explicitly calls
upon South Africa to respectGCIV.
162
Dinstein, above n 19, at312.
163
M.Bothe, Occupation, Pacific, in Bernhardt (ed), above n 91, at 7667; Roberts, above n 87, at2746.
164
Koutroulis, above n 12, at 27; Kolb and Vit, above n 60,at76.
165
M. Kelly, Restoring and Maintaining Order in Complex Peace Operations (Leiden:Nijhoff, 1999), at178.
160
161
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VII.Occupation innational liberationwars

Under Article 1(4) AP I, national liberation wars are subject to IHL of IACs, and both parties 55
are then equally bound by the rules of IHL on military occupation. However, what territory can be considered as occupied in national liberation wars? In the first place, it is highly
unrealistic to expect a state labelled as a racist regime, or as one engaged in colonial domination or alien occupation, to accept such classification in relation to itself, and such a state is
consequently unlikely to accept that it has to comply with IHL of IACs in its entirety. Even
less realistic would be to expect the national liberation movement to comply with the rules of
belligerent occupation on any territory it seeks to liberate and therefore call its own territory.
In theory, a racist regime would likely be considered as occupying the entire territory of the
state it governs. In case of colonial domination, the entire territory of the colony would be
occupied. As for alien occupation, this concept in Article 1(4) AP Iis not the same as that of
belligerent occupation in IHL166 (since in the case of belligerent occupation, the rules of IHL
of IACs on occupied territories would already be applicable, thus depriving the notion of alien
occupation in Article 1(4) AP Iof any scope and purport). Alien occupation therefore does
not necessarily entail the applicability of the law of belligerent occupation.167 However, it is to
be expected that a territory controlled by an alien occupier and in which it deprives a distinct
people of their right to self-determination, would be considered an occupied territory under
IHL (at least if the alien occupier is present with its military forces).168
Conversely, a national liberation movement would have to comply with the rules of 56
IHL on military occupation only in a territory other than that for which the people it
represents has a right to self-determination, e.g. the territory of a state other than that
against which the national liberation war is directed,169 the metropolitan territory of a
colonial dominator, or a territory within the state affected by the national liberation war
on which another people has a right to self-determination, if it acquires control over that
territory. Lastly, the case of belligerent occupation without armed resistance probably
does not apply to national liberation wars, as Article 1(4) AP Iexplicitly covers only
armed conflicts.
C. Relevance inNon-International Armed Conflicts

Through the alleged existence of rules of customary international law common to 57
non-international armed conflicts (NIACs) and IACs, the contemporary tendency
is to bring the law of NIACs closer to the law of IACs; together with combatant and
POW status, the legal regulation of military occupation constitutes one of the few sets
of rules to escape such a tendency to merge the bodies of rules of IHL. Occupation
presupposes an IAC.170 Indeed, as occupation involves control over territory without the consent of the authority that had control prior to the armed conflict, any
application by analogy of the rules of IHL of military occupation to a NIAC can
only refer to territory controlled by the insurgents, but never to the territory under
167
ICRC Commentary APs, para112.
Contra Bothe/Partsch/Solf, at2667.
Although this is not entirely clear from what they write, this opinion is probably shared by Kolb and
Vit, above n 60, at867.
169
Roberts, above n 87, at2923.
170
Dinstein, above n 19, at 334; Gasser, above n 19, at 272; Kolb and Vit, above n 60,at73.
166
168
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Geneva ConventionIV
governmental control.171 However, IHL must treat both parties to an armed conflict
equally. It would be impossible to convince insurgents to treat territory they liberated
as occupied. There are nevertheless suggestions to apply by analogy the rules of IHL
on military occupation to the legislative powers and detention authority of an armed
group.172 Some also suggest that if, in the course of a NIAC, a secessionist authority
gains control of parts of metropolitan territory over which it has no claim of secession, it should apply IHL of military occupation. However, no legal basis is provided
for such an obligation, and those suggesting it must admit that the metropolitan
government taking control of secessionist territory cannot be required to apply IHL
of military occupation.173
D. Legal Consequences ofa Violation

58 Clearly, the notion of occupation cannot be violated; only the rules that become applicable
in the course of an occupation can be violated. For such violations to be committed, it is
immaterial whether the state or the individual erroneously considers that that rules did
not apply, as long as the facts making them applicable are known. Nevertheless, in this
first chapter on occupation, it is necessary to discuss the conduct criminalized in occupied
territories, to analyse the relationship between the concept of occupation in IHL and that
of jurisdiction in IHRL, and to mention specific efforts to enforce GC IV on military
occupation.
I.The consequences ofoccupation ininternational criminallaw

59 Only one war crime expressly requires that the proscribed conduct takes place in an
occupied territory:the deportation or transfer of protected persons within or out of an
occupied territory in violation of Article 49 GC IV constitutes a grave breach under
Article 147 GC IV. This is also a war crime under Article 8(2)(a)(vii) of the ICC Statute,
which equally covers transfers of protected civilians out of a partys own territory in
violation of Article 45 GC IV. The (even voluntary) transfer of a partys own population
(which by definition does not consist of protected persons and is therefore not covered
by Article 147 GC IV) is criminalized by Article 85(4)(a) AP Ias a grave breach and
under Article 8(2)(b)(viii) of the ICC Statute as a war crime if it is conducted by an
Occupying Power and directed into an occupied territory. Pictets Commentary considers that the extensive appropriation of property, covered by Article 147 GC IV, can only
be committed in an occupied territory.174 While this may be the most frequent situation,
it is submitted that pillage of property of protected persons, prohibited by Article 33
paragraph 2 GC IV, equally applicable on a partys own territory, may also constitute a
grave breach.
Spoerri, above n 14, at185.

D. Casalin, Taking Prisoners: Reviewing the International Humanitarian Law Grounds for
Deprivation of Liberty by Armed Opposition Groups, 93 IRRC 883 (2011) 743, at756, and generally Ch 70,
MN 7176, of this volume.
173
Benvenisti, above n 8, at 61; M.Bothe, Occupation, Belligerent, in Bernhardt (ed), above n 91, at765.
174
Pictet Commentary GC IV, at601.
171
172
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II.Occupation and jurisdiction underinternational human rightslaw

Only persons who find themselves under the jurisdiction of a state party benefit from the 60
protection of IHRL treaties.175 While the concept of jurisdiction is interpreted differently under various IHRL treaties, human rights courts and treaty bodies consider that
an occupied territory is under the jurisdiction of the Occupying Power.176 This is also the
stand taken by the ICJ for, inter alia, the International Covenant on Civil and Political
Rights and the International Covenant on Economic Social and Cultural Rights.177 As
soon as a territory is classified as occupied, a person on such territory may enforce through
the available mechanisms and procedures of IHRL the rights protected by GC IV, if these
rights find an equivalent in IHRL. This offers such persons an individual complaints
mechanism not available underIHL.
III.Particular efforts toensure respect byIsrael forthe rules

onmilitary occupation inGeneva ConventionIV
Only as regards respect for GC IV, and in particular with regard to its rules applicable to 61
occupied territories, and only with regard to Israel, has the UN called upon states parties to GC IV to meet and discuss their obligations under Article 1, to ensure respect
for GC IV.178 Switzerland, the depositary of GC IV, has convened such meetings when
it has received sufficient support from states,179 which was not the case for the last call by
the UN General Assembly. Two Expert Meetings held in 1998,180 and a Conference of
the High Contracting Parties to GC IV held in 1999 and reconvened in 2001,181 reiterated the applicability of GC IV to the Occupied Palestinian Territories and concern about
lack of respect for that treaty by Israel. During these meetings, violations of GC IV were
175
See Art 1 ECHR/ACHR. Formally, the ACHPR and the ICESCR do not foresee such a limitation.
Under the wording of Art 1 ICCPR, a state must guarantee the rights it protects to all individuals within its
territory and subject to its jurisdiction. See generally M. Milanovic, Extraterritorial Application of Human
Rights Treaties (Oxford:OUP,2011).
176
See, for the ECtHR, Loizidou v Turkey, above n 57, para 56; ECtHR, Cyprus v Turkey, above n 57,
para77; ECtHR, Al-Jedda v United Kingdom, above n 116, para 77; ECtHR, Al-Skeini, above n 136, para
142; and ECtHR, Hassan v United Kingdom, Judgment (Grand Chamber), 16 September 2014, paras 7480.
For the ICCPR, see HRCttee, Concluding Observations of the Human Rights Committee:Israel, 21 August
2003, UN Doc CCPR/CO/78/ISR, para 11; HRCttee, Concluding Observations of the Human Rights
Committee:Israel, 18 August 1998, UN Doc CCPR/C/79/Add.93, para 10. For the ICESCR, see Concluding
Observations of the Committee on Economic, Social and Cultural Rights:Israel, 23 May 2003, UN Doc
E/C.12/1/Add.90, paras 15 and 31. For the Inter-American system, see IACommHR, Coard etal v United
States, Case Report No 109/99, 1999, para 37; and for the African system, see ACommHPR, Democratic
Republic of Congo v Burundi, Rwanda and Uganda, Com 227/1999, 25 May2006.
177
ICJ, Legal Consequences of the Construction of a Wall, above n 92, paras 10712; ICJ, DRC v Uganda, above
n 16, paras 21617. See generally as here Milanovic, above n 175, at1447.
178
See UN Docs S/RES/681 of 20 December 1990; A/RES/ES-10/2 of 5 May 1997; A/RES/ES-10/3 of 15
July 1997; A/RES/ES-10/4 of 19 November 1997; A/RES/ES-10/6 of 24 February 1999; A/RES/ES-10/10 of
7 May 2002; A/RES/ES-10/15 of 2 August 2004; A/RES 64/10 of 1 December 2009, para 5; A/RES 64/92
of 19 January2010.
179
P.-Y. Fux and M. Zambelli, Mise en oeuvre de la Quatrime Convention de Genve dans les territoires
palestiniens occups:historique dun processus multilatral (19972001), 84 IRRC 847 (2002)661.
180
See Switzerland, Federal Department of Foreign Affairs, Experts Meeting on the Application of the Fourth
Geneva Convention, Press release, Geneva, 11 June 1998, and Chairmans Report, Experts Meeting on the Fourth
Geneva Convention, Geneva, 279 October 1998, both available at <http://www.eda.admin.ch>.
181
Declaration Adopted at the Conference of High Contracting Parties to the Fourth Geneva Convention, 5
December 2001, 84 IRRC 847 (2002)679.
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Geneva ConventionIV
identified in general terms, in particular in occupied territories, and suggestions were put
forward on how future violations might be prevented and what measures third states might
take to implement their obligation to ensure respect for GC IV. In addition, UN organs
dealing with human rights have dispatched several fact-finding missions to the Occupied
Palestinian Territories, which dealt extensively with GCIV.182
E. Critical Assessment
62 The best protection possible under IHL is provided by the rules on military occupation.
However, most contemporary armed conflicts are not covered by those rules because they
are NIACs. Even in IACs, the emphasis of the law on military occupation on territory,
over which a belligerent gains control displacing the local sovereign, is very old-fashioned
and not adapted to many modern armed conflicts without frontlines. In these contemporary conflicts, which are not about territory, and in which belligerents do not try to
overcome the enemy by gaining control over its territory, air power, which is by definition
not territorial, has an increasing role, and states often rely upon local insurgents in the
enemy country, who reasonably cannot be expected to comply with the obligations of an
occupier in their own country. The situations of military occupation that actually exist
today are so few, disparate, and marked by historical and political specificities, that it is
difficult to draw general conclusions from state practice, in particular on the concept and
start of occupation.
63
If the protective effect of GC IV is insufficient in todays situations of occupation,
this is mainly due to general reasons concerning lack of respect by states for IHL and
not to reasons specific to the rules of GC IV on military occupation. In addition, most
Occupying Powers try to escape the opprobrium inherent in any classification of a territory as occupied, and seek to avoid the ensuing far-reaching obligations by denying that
their presence constitutes an occupation as defined in IHL. Such an avoidance strategy is
facilitated by the absence of a definition of the concept of occupation in GC IV, on which
the applicability of most of its provisions depends. The definition provided by the Hague
Regulations is only slightly clearer. Neither clarifies how much control over how much
territory is necessary for a foreign state to be an Occupying Power. As demonstrated in this
contribution, IHL nevertheless excludes factors other than the factseffective control on
the groundfrom the definition and therefore in the assessment of whether the IHL of
military occupation applies.
64
Most bona fide controversies about the definition of occupation, which are general
and abstract, i.e. not only due to whether a classifier wants to subject a certain situation
to GC IV, turn on the dichotomy between clear-cut categories and a sliding scale. As
shown throughout this contribution, this author favours a sliding scale, leading to a flexible interpretation of the amount of control and territory necessary to make the law of
military occupation applicablebut therefore also a sliding scale of obligations, which
increase according to the extent of control and of territory controlled. Such a sliding scale
has many advantages. Specifically, it keeps GC IV realistic, adapting it to the infinite
variety of real-life situations, makes the law applicable according to needs, and reduces the
importance of theoretically thorny controversial binary categories such as existence versus
182
See lastly UN Doc A/HRC/RES/S-21/1 of 24 July 2014, para13.
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1419
absence of control, or invasion versus occupation. De lege lata such a sliding scale may be
based upon the interpretation of treaty terms and what states actually do on the ground,
while their statements admittedly do not always point in this direction. On the other
hand, this commentator must admit that clear-cut categories have advantages. Human
beings reflecting on reality and regulating it have always known clear-cut categories with
fundamentally different real (and legal) consequences, arguably to avoid abuse. Achild
is born or not, and a human being is dead or alive. The advantage of clear-cut categories
in a system depending on self-application, without centralized adjudication and enforcement, as is the case for GC IV, is to reduce possible controversies, abuse, and self-serving,
subjective evaluation. Soldiers who must apply the law in the field can be trained to apply
the entire regime of the IHL of military occupation in certain situations, while theyor
their lawyerswould perforce position their situation on a sliding scale at the point most
favourable to them, e.g. consider that they have little control and therefore few obligations. This author chooses to face such risks instead of accepting gaps in protection. The
risk of subjective, self-serving interpretations cannot be avoided, even when adopting the
clearest-cut category of occupation.
Marco Sassli *
* Ithank Ms Nishat Nishat, LLM, for her thorough preparatory research when she was a doctoral student and research assistant at the University of Geneva, Ms Julia Grignon, professor at the University Laval,
Canada, for the many ideas she gave me in her doctoral thesis on the temporal scope of application of IHL,
which Isupervised, and Ms Annie Hylton, LLM, and Ms Yvette Issar, LLM, research assistants at the Geneva
Academy of International Humanitarian Law and Human Rights and the University of Geneva, respectively,
for further research and the revision of this chapter. Iam equally grateful to my co-editors for their useful and
challenging comments and suggestions.
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Chapter67. The Concept and theBeginning ofOccupation

Necessary presence of armed forces?

Loss of effective control by the adverse party

a. The systematic argument

V I. The special case of occupation without armed resistance

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Koutroulis, V., Le dbut et la fin de lapplication du droit de loccupation (Paris:Pedone,2010)

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Concept and theBeginning ofOccupation

Cf Art 43 Hague Regulations. 4 Cf Arts 4656 Hague Regulations.

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Concept and theBeginning ofOccupation

B. Meaning and Application

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I.Establishment ofeffective control bythe OccupyingPower

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Concept and theBeginning ofOccupation

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b.Occupation ofthe air and thesea?

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Concept and theBeginning ofOccupation

d.The possibility ofcontrol is sufficient

Critical also Benvenisti, above n 8,at47.

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f.Minimum extent ofterritory?

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Concept and theBeginning ofOccupation

g.Indirect occupation throughcontrol byan armedgroup?

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h.Joint control bya coalition

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Concept and theBeginning ofOccupation

II.Loss ofeffective control bythe adverseparty

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Concept and theBeginning ofOccupation

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Concept and theBeginning ofOccupation

IV.Irrelevance ofother criteria

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Concept and theBeginning ofOccupation

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V.Adistinction betweeninvasion and occupation?

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Concept and theBeginning ofOccupation

a.The systematic argument

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Concept and theBeginning ofOccupation

c.Aflexible understanding ofthe obligations ofan OccupyingPower?

d.Afunctional understanding ofthe concept ofoccupation itself?

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Concept and theBeginning ofOccupation

VI.The special case ofoccupation withoutarmed resistance

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I.Establishment ofeffective control bythe OccupyingPower

b.Occupation ofthe air and thesea?

d.The possibility ofcontrol is sufficient

f.Minimum extent ofterritory?

g.Indirect occupation throughcontrol byan armedgroup?

h.Joint control bya coalition

II.Loss ofeffective control bythe adverseparty

IV.Irrelevance ofother criteria

V.Adistinction betweeninvasion and occupation?

a.The systematic argument

c.Aflexible understanding ofthe obligations ofan OccupyingPower?

d.Afunctional understanding ofthe concept ofoccupation itself?

VI.The special case ofoccupation withoutarmed resistance

VII.Occupation innational liberationwars

I.The consequences ofoccupation ininternational criminallaw

II.Occupation and jurisdiction underinternational human rightslaw

III.Particular efforts toensure respect byIsrael forthe rules