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11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONS
The status of belligerent occupation ends when the conditions for its application are no
longer met. Certain GC obligations with respect to occupied territory continue for the duration
of the occupation after the general close of military operations.
11.3.1 End of Occupation. Belligerent occupation ceases when the conditions for its
application are no longer met.81 In particular, as discussed below, the status of belligerent
occupation ceases when the invader no longer factually governs the occupied territory or when a
hostile relationship no longer exists between the State of the occupied territory and the
Occupying Power.
82
Belligerent occupation ends when the Occupying Power no longer has effectively placed
the occupied territory under its control.
83 For example, an uprising by the local population may
prevent the Occupying Power from actually enforcing its authority over occupied territory.
Similarly, the Occupying Power’s expulsion or complete withdrawal from the territory would
also suffice because the former Occupying Power generally would not be able to control
sufficiently the occupied territory.
Belligerent occupation also may end when a hostile relationship no longer exists between
the Occupying Power and the State of the occupied territory (although, as discussed in the
following subsection, certain GC obligations may continue to apply).
84 For example, if a new,
79 For example, John D. Negroponte & Jeremy Greenstock, Letter Dated 8 May 2003 from the Permanent
Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to
the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/538 (“the United States,
the United Kingdom, and Coalition partners, acting under existing command and control arrangements through the
Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of
Reconstruction and Humanitarian Assistance, to exercise the powers of government temporarily, and, as necessary,
especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass
destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition
Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq … .”).
80 For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, 2 (May 22, 2003) (“Noting the
letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom
of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the
specific authorities, responsibilities, and obligations under applicable international law of these states as occupying
powers under unified command (the ‘Authority’),”); U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc.
S/RES/661 (1990) (Aug. 6, 1990) (“Determined to bring the invasion and occupation of Kuwait by Iraq to an end
and to restore the sovereignty, independence and territorial integrity of Kuwait,”).
81 Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).
82 WINTHROP, MILITARY LAW & PRECEDENTS 801 (“The status of military government continues from the inception
of the actual occupation till the invader is expelled by force of arms, or himself abandons the conquest, or till, under
a treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of the
prevailing belligerent.”).
83 Refer to § 11.2.2.1 (“Actually Placed” – Effectiveness of Occupation).
84 Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).
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independent government of the previously occupied territory assumes control of the territory and
consents to the presence of the previously occupying forces, then such a situation would no
longer be considered a belligerent occupation. Similarly, if a peace treaty legitimately transfers
the territory to the sovereignty of the Occupying Power, then the Occupying Power would no
longer be characterized as such. However, an Occupying Power is not permitted, under the law
of belligerent occupation, to annex occupied territory.85
11.3.2 Duration of GC Obligations in the Case of Occupied Territory. In the home
territory of parties to the conflict, the application of the GC shall cease on the general close of
military operations.
86
In the case of occupied territory, the application of the GC shall cease one year after the
general close of military operations; however, the Occupying Power shall be bound, for the
duration of the occupation, to the extent that such State exercises the functions of government in
such territory, by the provisions of the following Articles of the GC:
• 1 through 12 (general provisions and common articles, e.g., the Protecting Power
continues to function, and the derogation for security reasons continues to apply);
• 27, 29 through 34 (humane treatment);
• 47 (preserves rights as against change by annexation or arrangement with the local
authorities so long as occupation lasts);
• 49 (transfers, evacuation, and deportation);
• 51, 52 (prohibitions against certain compulsory service and protection of workers);
• 53 (respect for property);
• 59, 61 through 63 (facilitating relief programs);
• 64 through 77 (criminal proceedings); and
• 143 (access by Protecting Powers and the ICRC).
87
The one-year time limit for the cessation of the application of the GC (apart from the
provisions that continue to apply to the extent that the Occupying Power exercises the functions
of government in occupied territory) was proposed to account for situations like those of
85 Refer to § 11.4.2 (Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty
Over Occupied Territory).
86 Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).
87 GC art. 6 (“In the case of occupied territory, the application of the present Convention shall cease one year after
the general close of military operations; however, the Occupying Power shall be bound, for the duration of the
occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions
of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.”).
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Germany and Japan after World War II.
88 AP I provides that the 1949 Geneva Conventions and
AP I shall cease to apply, in the case of occupied territories, on the termination of the
occupation;89 coalition partners that are Occupying Powers and Parties to AP I would be bound
by this rule.
In any case, individuals entitled to GC protection who remain in the custody of the
Occupying Power following the end of occupation retain that protection until their release,
repatriation, or re-establishment.
90 In addition, it may be appropriate following the end of
occupation to continue to apply by analogy certain rules from the law of belligerent occupation,
even if such rules do not apply as a matter of law.
91