Ukraine Symposium – The Law of Belligerent Occupation

by

| Mar 8, 2023

Belligerent occupation

The ongoing conflict in Ukraine has raised important and timely issues regarding the application, implementation, and enforcement of the law of armed conflict. Particularly relevant, is the law of occupation. Unfortunately, this discrete subset of the law of armed conflict is often shrouded in myth, misconstrued, and inevitably has a pejorative connotation in public opinion (Dinstein, The International Law of Belligerent Occupation, p. 1; Sassòli, International Humanitarian Law, p. 304). 

The most persistent and common misunderstanding is that occupation is an anomaly in warfare. It is not. Although there have been many occupations since the Second World War, the most well-known and scrutinized examples have been the occupation of Iraq principally by the United States and the United Kingdom beginning in 2003 and Israel’s occupation of Arab territories starting in 1967 (Dinstein, p. 13-16). Russia’s occupation of portions of Ukraine, beginning as early as 2014 with its occupation of Crimea, highlights not only the continued relevance and importance of this area of law but also reflects egregious violations of its fundamental norms by Russia, reminiscent of the horrors that occurred in occupied territories in the Second World War.

Legal Thresholds

Provisions of the law of belligerent occupation are embodied in treaties and customary international law. Most notably, it is codified in Articles 42-56 of the 1907 Hague Regulations and Articles 47-78 of the 1949 Fourth Geneva Convention.  Other law of armed conflict treaties address aspects of the law of occupation, including the 1977 Additional Protocol I and the 1954 Hague Cultural Property Convention. Occupation law is also fleshed out further in military regulations, policy, and judicial opinions. Finally, international human rights law is applicable and relevant to occupations.

The portions of the Hague Regulations and the Fourth Geneva Convention addressing occupations emphasize different underlying purposes. Formulated before two world wars, the Hague Regulations focus on property rights and the sovereignty of States. The Fourth Geneva Convention, adopted in the aftermath of the atrocities committed in occupied territories in the Second World War, rewrote, expanded, and transformed the law of occupation, emphasizing humanitarian aims. 

The first critical thresholds of application of the law of occupation are Articles 42 and 43 of the Hague Regulations. Article 42 provides the trigger and scope of occupation law. Specifically, it provides that territory is occupied when “it is actually placed under the authority of the hostile army.” Thus, the legal regime of occupation law is triggered once an invading force establishes effective control over all or part of its enemy territory, thereby implicating “a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory.” (U.S. Law of War Manual, p. 771).

The existence of an occupation is a matter of fact. Characterizations by the occupying or occupied powers are not controlling. The scope of occupation is limited to the territory where authority has been established and can be exercised. By contrast, Article 43 provides as follows:

[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Put differently, the law of occupation rests on the fundamental premise that an occupation is a temporary arrangement, and any alteration of the existing order should be minimal.

Another key threshold in applying the law of occupation is found in common Article 2 (CA 2) of the Fourth Geneva Convention, which provides that the Convention shall apply to all cases of partial or total occupation.Considering the events of the Second World War, with their disastrous consequences for civilians, the Fourth Geneva Convention was the first multilateral treaty devoted to protecting the civilian population. Before 1949, the Geneva Conventions were chiefly concerned with combatants who became hors de combat.

Notably, the Fourth Geneva Convention does not invalidate the Hague Regulations on occupation but supplements them. If one conceives of the law of occupation as a trusteeship (which some respected commentators reject because it is not a relationship built on trust), the Fourth Geneva Convention makes civilians and the civilian population the primary beneficiaries of the trust. Article 27 of the Fourth Geneva Convention specifies safeguards for protected persons in occupied territories. They are, in part, as follows:

[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.  They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

The Situation in Ukraine

In applying Hague IV, Article 42 and CA 2 standards to Russia’s occupation of Ukraine, distinct geographical and temporal places and periods are relevant. The first period began in March 2014 when a combination of Russian regular armed forces and unidentified operatives – so-called “little green men” — occupied territory of Ukraine on the Crimean Peninsula.  That is, the armed forces of Russia were physically present on Ukrainian territory, without consent, exercising authority, while displacing the governmental authorities. The second period began in February 2022 when Russian armed forces invaded and occupied large territories in south and east Ukraine. Additionally, for a relatively brief period of time after the initial invasion, Russian forces-controlled areas in northern Ukraine near Kyiv and Kharkiv. Finally, it is important to note that some of the above areas have been and continue to be controlled by Russian proxies. 

It is almost impossible to overstate the scale and scope of Russia’s egregious violations of the law of occupation in Ukraine. A particularly graphic illustration of Russia’s malicious violence occurred in Bucha, a small city several miles northwest of Ukraine’s capital Kyiv.  Russian forces occupied Bucha for a short time after their initial invasion.  Ultimately, Russian troops were forced to withdraw from Bucha in response to a Ukrainian counteroffensive. During their control of Bucha, video evidence strongly suggested that Russian paratroopers summarily executed a group of Ukrainian captives. 

Once Ukrainian Forces liberated Bucha, evidence quickly mounted that it was a landscape of horrors. In brief, “[w]hen a defeated and demoralized Russian Army finally retreated, it left behind a grim tableau: bodies of dead civilians strewn on streets, in basements or in backyards, many with gunshot wounds to their heads, some with their hands tied behind their backs.”  Satellite images revealed what appears to be a mass grave in Bucha with the remains of nearly 300 people. Given the larger area and the length of the occupation in eastern Ukraine by Russian forces, the severity and magnitude of abuses of the civilian population most likely will exceed Bucha and other areas around Kyiv.  

Additionally, it has been alleged that Russia conducted unlawful transfers and deportations of Ukrainian nationals in violation of the law of occupation. Some reports put the number forcibly deported between 900,000 and 1.6 million, including 260,000 children. Russia has acknowledged that 1.5 million Ukrainians are in Russia but claims they were evacuated for safety.

In a report published in 2023 by the Humanitarian Research Lab at Yale School of Public Health, Russia is alleged to be operating a large-scale systematic network of camps and other facilities that have held 6,000 Ukrainian children within Russian-occupied Crimea and mainland Russia (with some being in Siberia and along Russia’s far eastern Pacific coast). Among the purposes of the facilities is to re-educate the Ukrainian children to make them more pro-Russian in their personal and political views. Russia’s deportations of Ukrainians violates a vital tenet of the law of occupation, Article 49 of the Fourth Geneva Convention, which provides that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” 

In addition to the above two examples, there are other blatant Russian violations of occupation law, including efforts to annex Russian-occupied territories in violation of Article 43 of the Hague Regulations. In the fullest of time, Russia’s violations of the law of occupation will come into more precise focus, thereby reinforcing its importance to the normative framework regulating warfare and its aftermath.   

***

Brigadier General (ret.) David A. Wallace is the United States Naval Academy Class of 1971 Distinguished Military Professor of Law & Leadership. He is also a Professor Emeritus United States Military Academy, where he previously served as the Professor & Head, Department of Law.

The views expressed here are the author’s personal views.  They do not necessarily reflect those of the Department of Defense, the United States Navy, the United States Naval Academy, or any other department or agency of the United States Government.  The analysis here stems from his academic research of publicly available sources, not protected operational information.

 

Photo credit: rbc.ua

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