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Law on Occupation and Effective Control

1. When does the law on occupation apply to the Russian presence in Georgia?  
2. Does applying occupation law to Russia affect the status of the territory that Russia occupies?  
3. Is Russia an occupying force in buffer zones and in places where it maintains roadblocks and checkpoints?  
4. What law relating to occupation is binding on Russia?  
5. What are the basic principles of international humanitarian law underlying military occupation?  
6. What are the protection obligations of an occupying power towards the local population?  
7. What are the obligations of an occupying power to provide for well-being of the population?  
8. When can civilians be detained or taken prisoner by an occupying power?  
9. When can civilians be required to work by an occupying power?  
10. What obligations exist concerning the property and resources of the occupied territory?

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1. When does the law on occupation apply to the Russian presence in Georgia?  
 
Territory is considered "occupied" when it is comes under the control or authority of foreign armed forces, whether partially or entirely, without the consent of the domestic government. This is a factual determination, and the reasons or motives that lead to the occupation or are the basis for continued occupation are irrelevant. Even if the foreign armed forces meet no armed resistance and there is no fighting, once territory comes under the effective control of the foreign armed forces the laws on occupation are applicable. Therefore wherever Russian forces exercise effective control of an area in Georgian territory, including in South Ossetia or Abkhazia, without the consent or agreement of the Georgian government, for the purposes of international humanitarian law it is an occupying power and must adhere to its obligations as such.  
 
2. Does applying occupation law to Russia affect the status of the territory that Russia occupies?  
 
Applying the law of occupation, or deeming Russia an occupying power for the purposes of international humanitarian law, does not in any way affect the sovereignty of the territory. Sovereignty is not transferred to the occupying power.  
 
3. Is Russia an occupying force in buffer zones and in places where it maintains roadblocks and checkpoints?  
 
Russia is bound by the law of occupation wherever it exercises effective control within the territory of Georgia without the consent of the Georgian state. Anywhere Georgian authorities are prevented from their full and free exercise of sovereignty – such as denying access for Georgian authorities including law enforcement and military forces – because of Russian presence, Russia is assuming the role of an occupying power for the purposes of international humanitarian law, and all its obligations towards the civilian population remain.  
 
If Russia exercises effective control of access to an area, such as a so-called buffer zone, even if it grants access to some authorities, for example, Georgian police, it is still bound by its obligations to the civilian population to ensure public safety and welfare and permit humanitarian access.  
 
4. What law relating to occupation is binding on Russia?  
 
While much of occupation law is also a matter of customary humanitarian law, the primary treaty sources of the modern law of occupation are the Hague Regulations of 1907, the Fourth Geneva Convention of 1949 and certain provisions of the First Protocol of 1977 Additional to the Geneva Conventions of 1949, to which Russia is a party.  
 
The International Committee of the Red Cross (ICRC) Commentary to the Fourth Geneva Convention notes that the obligations of the Convention begin as soon as there is contact between the civilian population of a territory and troops advancing into that territory, i.e. at the soonest possible moment. Under the Fourth Geneva Convention, protected persons are all those who find themselves in the hands of a party to the conflict or an occupying power of which they are not nationals. While all of the duties imposed on an occupying power may not become applicable immediately (some presuppose the presence of the occupation authorities for a fairly long period), the entirety of the provisions relating to the rights enjoyed by protected persons and their treatment become applicable immediately.  
 
In addition to the rules found in international humanitarian law, the occupying power must respect human rights law and national law, subject to certain exceptions. With respect to human rights law, limitations on certain rights are permitted if they are strictly required by the exigencies of the situation, but any limitations must still respect the standards in international humanitarian law.  
 
5. What are the basic principles of international humanitarian law underlying military occupation?  
 
International humanitarian law provides that once an occupying power has assumed authority over a territory, it is obliged to restore and maintain, as far as possible, public order and safety (Hague, art. 43). Under the Fourth Geneva Convention, the occupying power must also respect the fundamental human rights of the territory’s inhabitants, including noncitizens (Geneva IV, arts. 29, 47) and ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation (G IV, arts. 55,56). Collective punishment and reprisals are prohibited (Protocol I, 75). Personnel of the International Red Cross/Red Crescent Movement must be allowed to carry out their humanitarian activities (G IV, art. 63).  
 
6. What are the protection obligations of an occupying power towards the local population?  
 
An occupying power is responsible for respecting the fundamental human rights of the population under its authority. All persons shall be treated humanely and without discrimination based on ethnicity, religion or other basis. This includes respecting family honor and rights, the lives of persons, and private property, as well as religious and customary convictions and practice.  
 
Women shall be especially protected against any attack, in particular against rape, enforced prostitution, or any form of indecent assault. Everyone shall be treated with the same consideration by the occupying power without any adverse distinction based, in particular, on race, religion or political opinion. Private property may not be confiscated. (Hague, art. 46, G IV, art. 27). However, an occupying power may take such measures of control and security as may be necessary as a result of the war (G IV, art. 27).  
 
An occupying power is specifically prohibited from carrying out reprisals and collective penalties against persons or their property (G IV, art. 33) and from taking hostages (G IV, art. 34). In general, no one can be punished for acts for which he or she has not personally committed. All parties to a conflict are required to provide information on prisoners of war (G III, art. 122) and “protected persons” (civilian nationals) in their custody (G IV, art. 136).  
 
The occupying power is prohibited from forcibly transferring or deporting protected persons outside of the occupied territory irrespective of motive (G IV, art. 49).  
 
7. What are the obligations of an occupying power to provide for well-being of the population?  
 
Generally, an occupying power is responsible for ensuring that food and medical care is available to the population under its control, and to facilitate assistance by relief agencies.  
 
An occupying force has a duty to ensure the food and medical supplies of the population, as well as maintain hospitals and other medical services, “to the fullest extent of the means available to it” (G IV, arts. 55, 56). This includes protecting civilian hospitals, medical personnel, and the wounded and sick. Medical personnel, including recognized Red Cross/Red Crescent societies, shall be allowed to carry out their duties (G IV, arts. 56, 63). The occupying power shall make special efforts for children orphaned or separated from their families (G IV, art. 24) and facilitate the exchange of family news (G IV, arts. 25, 26).  
 
If any part of the population of an occupied territory is inadequately supplied, the occupying power shall facilitate relief by other states and impartial humanitarian agencies (G IV, art. 59). However, the provision of assistance by others does not relieve the occupying force of its responsibilities to meet the needs of the population (G IV, art. 60). The occupying power shall ensure that relief workers are respected and protected.  
 
8. When can civilians be detained or taken prisoner by an occupying power?  
 
The Fourth Geneva Convention permits the internment or assigned residence of protected persons for “imperative reasons of security.” This must be carried out in accordance with a regular procedure permissible under international humanitarian law and allow for the right of appeal and for review by a competent body at least every six months (G IV, art. 78). The Fourth Geneva Convention provides detailed regulations for the humane treatment of internees. The ICRC must be given access to all protected persons, wherever they are, whether or not they are deprived of their liberty.  
 
9. When can civilians be required to work by an occupying power?  
 
Adults (individuals 18 years or older) may be required to work as is necessary to maintain public utilities, and to meet needs of the Russian army and humanitarian needs, such as activities related to feeding, sheltering, clothing, health care of the civilian population. People must be appropriately compensated for their work, and there can be no obligation to work based on any form of discrimination. People must not be transported to other places to carry out work, but perform it in the area of occupation. People should as far as possible be kept in the jobs they already hold and fair wages and conditions of employment as set out in legislation, must be met. (G IV, art. 51) Unpaid or abusive forced labor, or work that amounts to partaking in military operations, is strictly prohibited.  
 
10. What obligations exist concerning the property and resources of the occupied territory?  
 
In general, the destruction of private or public property is prohibited unless military operations make it absolutely necessary (G IV, art 53). Cultural property is entitled to special protection; the occupying power must take measures to preserve cultural property (Cultural Property Convention, art.5). As a rule, private property cannot be confiscated. Religious, charitable and educational institutions are to be treated as private property. The occupying power may requisition food and medical supplies for occupation forces and administrative personnel so long as the needs of the civilian population have been taken into account and fair payment is made (G IV, art. 55). Taxes and tariffs may also be imposed to defray the administrative costs of the occupation, including the cost of occupying forces (Hague, art. 49).  
 
Public properties are treated as either movable or immovable property. Movable government properties that may be used for military purposes (transport, weapons) are considered “spoils of war” and may be seized without compensation (Hague, art. 53). Immovable government properties (public buildings, real estate) may not be appropriated; however they can be used and administered by the occupying power so long as their assets are maintained (Hague, art. 55). Any loss of value from their use must be compensated.  

 

 
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