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III) How is occupation regulated? - Coggle Diagram

- - - - The principle is that the interests of the occupied state should be preserved so all its national law should remain in place. The occupied power should not change national laws BUT there is exception.
      - The occupying power should only legislate in the following circumstances
        
        To protect its security and to maintain public order and civil life
        
        To implement IHL obligation such as in the fields of child welfare, labor, ...
        
        To respect IHRL obligations
        
        When authorized to do so by the SC to maintain peace and security.
        
        Only the military commander of the occupying forces may legislate through a military order as this person is the only lawful legislator. Legislation through parliament would be tantamount to annexation (l’équivalent d’une annexion)
      - No alteration of status of magistrates & public servants + no deportation or forcible transfer of civilian population
- - - - ART 50-61 GC IV: rights of civilian populations are protected by GC IV: food and medical supplies, public health and hygiene, spiritual assistance
        
        Occupying power must respect and guarantee rights without interfering in local systems -> should rely on local authorities
        
        If the needs of the population cannot be satisfied by the local system, occupying power must itself provide goods and services while respecting local traditions and sensitivities
        
        If the needs of the population remain unsatisfied, the occupying power must agree to (and must facilitate) external humanitarian assistance
    - - Protected persons in occupied territory may only be deprived of their liberty as civilians’ internees for imperative security reasons, in view of a criminal trial or to serve a criminal sentence They must be treated humanely and can only be detained in the occupied territory
      - IHL regulates the procedure and admissible reasons under which an occupying power may try protected civilians in an occupied territory in detail because it considers that the main risk consists of abusive criminal trials
- - - - The occupying power must ensure public order and civil life in the occupied territory. Normally, this must be achieved through the existing local institutions. However, if local institutions are not functioning, the occupying forces must themselves ensure the prosper administration of the territory. The occupying power will use its police to pacify the situation
    - - In principle, when there is total control over the security situation, public order is maintained through law enforcement (and the application of IHRL) and criminal prosecution; “capturing rather than killing”
    - - Civilians may be administratively detained for “imperative reasons of security”
    - - Private properties
        
        Definitive confiscations are only permitted regarding goods susceptible to direct military use, such as ‘munitions of war’
        
        Requisitions are permitted for the needs of the occupying army -> must be proportionate and paid. Requisitions of hospitals can only occur in exceptional circumstances.
        
        The destruction of private property is permissible only when it is ‘rendered absolutely necessary by military operations’.
      - Public properties
        
        All of the enemy’s movable public property, including cash, that may be used for military operations may be seized as war booty.
        
        • Immovable public property must be administered according to the rules of usufruct as the occupied State is no longer able to do so.
    - - Normally, occupying power should rely on national courts but the convention says that they can use their own military courts in some circumstances.
      - Military courts of the occupying power may try individuals for:
        
        Acts breaching laws enacted by the occupying forces under ART 64 GC IV
        
        Crimes under the existing criminal law of the occupied territory if necessary for the effective administration of justice, such as when all judges have fled or have resigned according to their right to do so under IHL
        
        BUT National courts of the occupied power remain competent for all other acts
    - - Protected persons may be enlisted on work which is necessary for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country