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Роль международного права в регулировании отношений между оккупирующей державой и оккупированной территорией в случае оккупации

Military occupation is the temporary occupation by the armed forces of one State of all or part of the territory of another State with the assumption of management functions.

Military occupation does not extend the sovereignty of the occupying State to the territory occupied by its troops. After the entry into force of the Geneva Conventions I - IV (1949) [9], the regime of military occupation is not conditioned by either the declaration of a state of war or the absence of armed resistance to the occupier (Article 2 is common to the four Geneva Conventions).

On the other hand conquest, in international law, the acquisition of territory through force, especially by a victorious state in a war at the expense of a defeat state. An effective conquest takes place when physical appropriation of territory (annexation) is followed by "subjugation [12]" (i.e., the legal process of transferring title).

Conquest is associated with the traditional principle that states may resort to war at their discretion and that territorial and other gains achieved by military victory will be recognized as legally valid. The doctrine of conquest and its derivative rules were challenged in the XX century by the development of the principle that aggressive war is contrary to international law, a view that is expressed in the covenant of the League of Nations, the Kellogg-Briand Pact of 1928 , the charters and judgments of the international military tribunals created at the end of World War II to try those accused of war crimes, the Charter of the United Nations, and numerous other multipartite treaties, declarations, and resolutions.

The emergence and development of the law of military occupation is dictated by the need for international legal regulation of relations between the occupying Power, on the one hand, and the occupied State and its inhabitants, including refugees and stateless persons, on the other. The right of military occupation is applicable only in international armed conflicts.

Occupation should be distinguished from the conquest of territory. Conquest presupposes the complete submission of the defeated to the victor, entailing the end of the war and the termination of the existence of the defeated state. Occupation, on the contrary, is characterized by the preservation of the power structures (even in exile) of the defeated state and the continuation of resistance and military actions against the occupying State.

The right of military occupation gradually developed in the second half of the 19th century during discussions between the governments of European States, mainly during the peace conferences in Brussels (1874) and The Hague (1899 and 1907) [7].

The principle of protecting civilians and their property is conditioned by the earlier distinction between combatants and non-combatants and the obligation to protect the latter from the scourge of war. The obligation to respect the sovereign rights of the occupied State is a reflection of the last stages of the crystallization of the concept of sovereignty as the supreme authority of the State over its territory and citizens of the country. This dual concept of occupation became part of general international law by the beginning of the 20th century.

During the XX century, the right of occupation was often violated. Many occupiers either did not recognize the right of occupation at all, or interpreted its provisions for their own purposes.

The orders established during the Second World War by the Nazi invaders and their allies in the occupied territories of Europe and the former USSR were accompanied by unprecedented cruelty. Most of the overthrown Governments in exile or after their return also had little respect for the right of occupation, refusing to recognize the validity of regulations adopted by the occupier.

Another type of problem that arose after the end of the cold war concerns UN peacekeeping missions in the framework of post-conflict settlement, in countries such as Kosovo and East Timor (1999), or missions of international forces under the auspices of the UN, in countries such as Somalia (1992), none of which recognized the applicability of the law of occupation to these missions, with the exception of the Australian unit in Somalia.

The norms relating to the law of military occupation are contained in the following international legal acts:

  • Section III «On Military Authority in the Territory of an Enemy State» of the Hague Regulations on the Laws and Customs of Land Warfare of 1907;
  • section III, Part III «Occupied Territories» of the Geneva Convention (IV) of 1949 on the Protection of Civilians in Time of War;
  • Part IV, section II «Assistance to the civilian population», section III «Treatment of persons in the power of a party to the conflict» of Additional Protocol I to the Geneva Conventions of 1949, concerning the Protection of Victims of International Armed Conflicts of 1977.;
  • universal and regional human rights treaties;
  • other documents related to the law of armed conflict, in accordance with the subject of these documents;
  • judicial rulings, doctrinal sources (primarily coming from the International Committee of the Red Cross (hereinafter - the ICRC)).

The legal conditions for the entry into force of the military occupation regime are determined by Article 42 of the Regulations on the Laws and Customs of the Land War of 1907, which is considered a reflection of international customary law. This text, which has remained unchanged since its initial appearance in Article 1 of the Brussels Declaration (1874) [2] (Draft International Declaration on the Laws and Customs of War), reads:

  • The territory is recognized as occupied if it is really in the power of the enemy army.
  • Occupation extends only to those areas where this authority is established and is able to exercise its activities [9].

According to the ICRC, occupation takes place under the following conditions:

  • the armed forces of the State are physically present on foreign territory without the consent of an effective local government;
  • the local Government cannot exercise its powers due to the presence of foreign forces;
  • foreign forces can exercise power in a given territory instead of the local Government.

Since occupation is a matter of fact, an official declaration of occupation or the establishment of an occupation administration is not required, and their absence does not affect the status of the occupied territory in any way.

The determination of whether the conditions for the validity of the occupation regime are met at a given time and place should be based on an actual analysis of the situation in each specific case. Effective control does not require the presence of occupation forces in all places. It is generally accepted that it is enough for the occupying forces to send military detachments to maintain power in the occupied territory within a reasonable time. The number of troops needed to carry out the occupation depends on various factors, such as the location of the inhabitants, the number and density of the population, as well as the nature of the terrain [7]. Battle areas cannot be considered occupied, but sporadic local resistance, even at times successful, does not make the occupation ineffective.

Occupation does not entail the transfer of sovereignty, but entails the transfer of territorial jurisdiction and, accordingly, the assignment of State functions and obligations to protect human rights to the occupier.

The basic rules for the treatment of Civilians, the rights and obligations of the occupying Power in accordance with international humanitarian law can be summarized as follows:

  • The population of the occupied territory enjoys humane treatment and basic human rights: the right to private and family life [9], the right to a fair trial, freedom of religion, etc.
  • The occupying Power must take measures to restore and ensure, as far as possible, civilian life, public order and security.
  • The laws of the occupied Territory remain in force if they do not pose a threat to the security of the occupying Power or hinder the application of international law of occupation.
  • The occupying Power is obliged to maintain health care and public hygiene in the Occupied Territory with all the means at its disposal, as well as to ensure the supply of food and sanitary materials to the civilian population. If the supply of the population is insufficient, the occupier must agree to the provision of assistance by other States or humanitarian organizations.
  • The occupying Power is prohibited from forcing local residents to serve in its armed or auxiliary forces.
  • Forced displacement of the population in the occupied territory is prohibited, unless it is required for reasons of its security.
  • The deportation of civilians from the occupied territory to the territory of the occupying Power is absolutely prohibited.
  • Forced labor is allowed only if it is necessary to meet the needs of the occupation army or the functioning of household infrastructure. At the same time, the occupying army cannot use the population at military facilities and defensive works.
  • Collective punishments, acts of intimidation and terror are not allowed.
  • Taking hostages is prohibited.
  • The confiscation of private property by the occupier is prohibited.
  • Destruction of property that is not absolutely necessary for military operations is prohibited.
  • The deliberate seizure, destruction or damage of cultural property is prohibited and must be prosecuted.
  • The occupier can collect taxes from the population.
  • The occupying Power may requisition food supplies and sanitary materials only to meet the needs of the army and taking into account the needs of the civilian population.
  • The occupier can only take possession of State funds, weapons depots, vehicles, food supplies and all movable property of the State that can serve for military operations.
  • Private property is not subject to confiscation, but paid requisitions are allowed to meet the needs of the army. In addition, communications equipment, vehicles and military supplies may be seized from private individuals, but they must be returned with damages after peace is concluded [1].

Thus, occupation is a form of foreign domination over the territory of a sovereign state, and this fact predetermines the inevitability of rather harsh conditions for the civilian population living in the occupied territories. However, the norms of international humanitarian law still soften the situation of protected persons as much as possible, limiting the previously unlimited power of the occupying power. Actions of the occupation authorities at the present time are controlled through special international institutions designed to ensure the rights of protected persons.

On the other hand, occupation should be distinguished from the conquest of territory. Conquest presupposes the complete subordination of the defeated to the victor, entailing the end of the war and the termination of the sovereignty of the defeated state, the elimination of its state-legal institutions. Occupation, on the contrary, is characterized by the preservation of the power structures (even in exile) of the defeated state and the continuation of resistance and military actions against the occupying State. The norms relating to occupation do not apply to conquest (subjugation). Accordingly, if the occupation of the territory the complete and unconditional surrender of the enemy follows, as in the case of fascist Germany on May 8, 1945, then the complete subordination of the territory, the cessation of the existence of the army and government, as well as the cessation of any forms of struggle change the occupation regime, and the right of occupation no longer applies.

At the same time, modern international humanitarian law proceeds from the provision that the right of occupation may not be applied only if the conquest is the result of a struggle with an aggressor State. This provision, in particular, was fixed in one of the decisions of the Nuremberg Tribunal. Responding to the argument put forward by the defendant, who claimed that the German Reich was not bound by the law of military occupation in relation to the territories captured by Germany, the court stated that the doctrine of conquest does not apply to the situation of aggressive war. «In the opinion of the Tribunal», the verdict notes «in this case there is no need to decide whether the doctrine of seizure is applicable... where conquest is the result of aggressive warfare» [8].

Thus, international law does not recognize the conquest alienation of a territory or part of a territory carried out as a result of an aggressive war, because this contradicts the jus contra bellum. Conquest, in principle, can only be carried out by the state, speaking out against the aggressor.

The basic idea of the right of military occupation is to preserve the status quo ante in the occupied territories for the duration of the armed conflict, in order to ensure the painless return of such territories to the relevant State in the future.

According to article 43 of the Hague Convention IV of 1907, the enemy occupying the territory is obliged to take all measures depending on him to restore and ensure public order and public life as far as possible, and at the same time he must respect «the laws existing in the country, if by that time there is no insurmountable obstacle» [7].

At the end of our article we will conduct a brief legal case analysis of the regime of occupation of Iraq. Пример HTML-страницы

The legal assessment of the US war against Iraq is based on the discrepancy between the norms of international law and a number of provisions of American analysts justifying the US leadership's war against Iraq.

The US leaders proceed from a number of facts that, in their opinion, justify the use of military force to «stabilize» the situation in the Middle East, including in Iraq. A review of the statements of US officials and experts allows us to highlight the following facts:

  1. Iraq has violated 16 UN resolutions, has been ignoring them for 12 years, and therefore must be attacked.
  2. Iraq produces weapons of mass destruction (WMD) and is going to use it to attack the United States.
  3. Russia and France object to the war in Iraq only because they buy cheap Iraqi oil and do not want to lose a source of income.
  4. Russia and France object to the war in Iraq only because they have sold Iraq a lot of weapons, including WMD, so they have always been at one with the dictator.
  5. The Iraqis will be much better off after the war, they hate
  6. Hussein, and when the United States removes the dictatorship, Iraq will rise thanks to oil, and all Iraqis will be able to use the oil revenues that are now appropriated by Hussein.
  7. It is absolutely unprofitable for the United States to fight, because the revenues from Iraqi oil will be much less than the costs of the war. So the US is fighting for altruistic reasons.
  8. The USA uses modern high-precision weapons. There will be no civilian casualties in the war.
  9. The United States does not want war, there is simply no other way out.
  10. The UN is not effective enough in ensuring the implementation of international legal acts, so someone has to play the role of a «world policeman»
  11. Iraq does not cooperate with UN inspectors, does not let them into important facilities, in addition, expelled them from the country in 1998
  12. Iraq violates the zones prohibited for flights of Iraqi combat aircraft.
  13. Iraq supports and arms terrorists.
  14. Iraq is dangerous for its neighbors.

An assessment of these statements from the point of view of the norms of international law, as well as some US legal norms for each of the above provisions can be presented in the next version.

Iraq, in fact, does not comply with almost all the resolutions adopted by the UN. But the norms of international law do not foresee that a military operation against Iraq should be organized for this. For example, Israel has violated 68 UN resolutions, this has been going on for 50 years, but no one is going to bomb Tel Aviv yet.

UN resolutions have been violated, however, by what means to do this, according to the UN Charter, only the UN Security Council and no one else can decide. As a rule, groups of UN inspectors monitor the implementation of UN Security Council resolutions. A simple analogy is that if a court finds a person guilty of murder, it does not mean that any passerby can punish this person. The definition of punishment is the competence of the court, not the executor.

In this case, the actions of the United States can be qualified as unauthorized and not authorized by the UN. Thus, the United States violated the provision of the UN Charter, which states that war cannot be considered a means of solving international problems, and is justified only in two cases:

  1. as a means of self-defense; i.e., the attacked State has the right to defend itself.
  2. a State has the right to start a war if another State is actively preparing to attack it.

It is clear that Iraq has not committed and is not committing any actions to attack the United States; moreover, Iraq does not have any military means that could attack US territory. Consequently, US military actions against Iraq cannot be justified by references to the UN Charter.

It should be noted that the norms of international law, including the UN Charter, provide for the possibility to use any means, including military intervention in specially specified cases, for example, to stop genocide or in case of danger to world peace. However, the decision on the use of military forces can be made by the UN Security Council and no one else.

UN Resolution No. 1441, the provisions of which, according to the US leadership, justify their actions as sanctions against Iraq provided for by this resolution if it violates it. However, the 12th paragraph of this resolution states that if Iraq does not fulfill its obligations, the UN Security Council should immediately meet and decide on further actions. Nevertheless, in violation of this norm, the United States made the decision independently, without contacting the UN Security Council.

Moreover, the Congress and the US President violated the Constitution of their country. The US Constitution recognizes all ratified international treaties, including the UN Charter, as having a higher priority than any US laws, including the Constitution. However, Congress authorized the President's actions to unleash military action against Iraq even if the UN refuses to grant America a mandate to conduct a «peacekeeping operation». Thus, the highest authorities of the United States deliberately ignored the fundamental legal law of international law — the UN Charter.

In the peace terms signed by the United States and Iraq on 28.02.1991, no zones were provided for the flights of Iraqi combat aircraft. Of course, UN resolutions require strengthening the security of the Kurdish national minority, but there are no restrictions on the flights of Iraqi aviation. The creation of zones prohibited for flights of Iraqi combat aircraft was announced by the United States, Great Britain and France 18 months after the end of the war. The UN has never sanctioned this decision. France later also changed its mind and condemned the creation of such zones.

The creation of such zones clearly contradicts Article 51 of the UN Charter, which states that every state has the right to protection on its territory, without providing for any exceptions in the form of zones prohibited from flying its own (In this case, Iraqi) combat aircraft. Despite this, targets in Iraq that did not even cause a direct threat to the patrolling aircraft of the United States and Great Britain (whose presence in those zones is a violation of Iraqi airspace) were regularly shelled and destroyed.

As already mentioned, the Iraqi army (according to experts, including the United States) was not even able to defend itself, let alone attack. Attention is drawn to the fact that the very neighbors of Iraq, whom the United States seems to be protecting from Iraq, do not support the war. Saudi Arabia, Jordan, Syria, the United Arab Emirates, Bahrain, Iran and even Turkey have called for a political solution to the conflict. If Iraq's neighbors felt that Iraq was dangerous for them, they could at any time appeal to the UN General Assembly with a request to take measures to maintain security and peace in the region. However, over the past 12 years, none of the neighboring countries of Iraq has done this. It seems that only the United States and the United Kingdom saw the danger to the region.

The totality of the facts presented allows us to conclude that from a legal point of view, it is very difficult for the United States of America to justify its «good intentions» to establish peace and tranquility in the Middle East, as well as to convince the world community that democracy delivered to Iraq on tanks is a guarantee of equality of all before the law.

It should also be noted that the United States, by taking military action against a sovereign state, has dealt a significant blow to international law, which will force many international organizations to reconsider some norms of international law.

АЛЬ-МУТТАИРИ Фурат Заки Салих
аспирант кафедры международного права Юридического института Российского университета дружбы народов

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 Санкт-Петербургский институт  (филиал)
Образовательная программа
высшего образования - программа магистратуры
Квалификация (степень) - МАГИСТР.

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