Military occupation

The rules of IHL apply not only to armed conflicts, but also to situations of military, or belligerent, occupation, even if that occupation is met with no armed resistance. Occupation occurs when one State invades and exercises effective control over the territory of another State without the other party’s consent.

In situations such as these, it is the rules that govern international armed conflicts, rather than non-international armed conflicts, that will apply. Additionally, for those States that are parties to Additional Protocol I, Article 1(4) provides that IHL not only applies when the occupation concerns High Contracting Parties (i.e. States), but also to people fighting against ‘alien occupation…in the exercise of their right of self-determination’.

The law of occupation is designed to preserve the status quo while the displaced power does not have effective control. ‘Effective control’ essentially relies on the occupying power’s ability to assume de facto governmental functions such as ensuring public security, and law and order. This doesn’t necessarily have to be exercised through the armed forces. To that end, the law tries to balance the interests of the various stakeholders that are affected by the occupation, including the occupying power, the displaced power, and the occupied population.

While the IHL rules applicable to military occupation were designed to apply to short, temporary occupations, contemporary occupations can be prolonged. For example, the Israeli-occupied Palestinian territories have been occupied for decades. This can present challenges for the application of IHL and international human rights law, the norms and rules of which may be said to complement, or conflict with, one another.

Relevance to businesses

Businesses operating, or with settlements, in an occupied territory must take account of the rules and certain obligations that apply in these territories under IHL. These include:

• a ban on the forcible removal or transfer of populations in or out of these occupied territories;
• a ban on the taking of private property;
• the prohibition of pillage and the destruction of property;
• the provision of sufficient hygiene and public health standards, food and medical care to the local population by the occupying power (to the fullest extent of the means available to it); and
• a requirement to ensure any use of resources of the territory benefits the local population.

That said, under very specific circumstances, the occupying power may seize any movable property, belonging to the state, which may be used for military operations.

There are also two notable exceptions to the ban on confiscating private property:

1. First, private property that may be used for military operations (such as communication devices, means of transportation and weaponry) may be seized, but must be restored or its owner compensated at the end of the conflict; and
2. Second, the occupying power may lawfully requisition other goods or money from the inhabitants.

If these actions are carried out, it must be done in accordance with specific rules and for the purposes of covering the needs of the occupying forces or of the administration of the occupied territory. Additionally, requisition must always be proportionate to the available resources of the territory.

What are the IHL-related risks for businesses operating in occupied territories?

A business directly contravening these responsibilities, or aiding governments or other entities to do so, may be exposed to legal, operational and reputational risks, including war crimes allegations.

Actions that may amount to war crimes, or complicity in war crimes, include participating or assisting in settling civilians in occupied territory; maintaining, developing or expanding settlements; appropriating resources; and damaging or enabling the destruction of land and property.