Since 1949, the various new international conventions with a specific bearing on occupations have all echoed the terms of common Article 2.4 The most significant post-1949 development, so far as the scope of application of the law on occupations is concerned, is in Additional Protocol I, paragraphs 3 and 4:
“This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the pro- tection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.
The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”
The aim of paragraph 4 as quoted above seems to be to try to establish that certain armed conflicts that might be viewed by some as essentially internal in character, are really international, and hence fully subject to the better-developed legal regime governing international armed conflicts. As far as its specific reference to occupation is concerned, the paragraph does not concern itself directly with the definition or scope of ‘alien occupation’; and it adds little to the scope of application as spelt out in the 1949 Geneva Conventions themselves. All it really does is to close a tiny technical loophole in common Article 2, by making a little clearer what was already widely accepted – namely, that the law on occupa- tions is applicable even in situations (like the West Bank and Gaza) where the occupied territory was not universally viewed as having been part of “the territory of a High Contracting Party.” As Bothe, Partsch and Solf say, it appears that the term ‘alien occupation’ is “meant to cover cases in which a High Contracting Party occupies territories of a State which is not a HCP, or territories with a controversial international status, and to establish that the population of such territory is fighting against the occu- pant in the exercise of their right of self-determination.”5
Article 3 of Additional Protocol I, addressing the “Beginning and end of application,” makes it clear that the law can apply for a longer period in relation to occupations than in the case of armed conflict. As 3(b) states:
“The application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occu- pied territories, on the termination of the occupation, except, in either circumstance, for those persons whose final release, repatriation or re-establishment takes place thereafter …”
2. PRACTICE: THREE BASIC TYPES OF ENDING FOR OCCUPATIONS
There have always been difficulties in determining the actual end of occupations. For example, there have been disagreements about what level of resistance activity or overt fighting within an occupied territory leads to a situation being classified as one of armed conflict rather than occupation – at least in the particular area where fighting is taking place. As regards the formal ending of the occupation of an entire occupied territory, there can be three basic types of ending: military withdrawal, end of occupation with continued presence of foreign forces, and acts of self-determination that effectively end the condition of occupation.
4 1954 Hague Cultural Property Convention, Arts 5 and 18; Additional Protocol I, Art. 1; 1981 Convention on Certain
Conventional Weapons, Art. I.
5 M. Bothe, K.J. Partsch and W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional
A. MILITARY WITHDRAWAL
One post-war example of an occupation that did end with a complete withdrawal of all the occupying forces (in this case by agreement) is Austria. The occupation by the USSR, USA, UK and France, which lasted for more than ten years, was wound up in accord with the Austrian State Treaty, signed by these four countries on 15 May 1955. Later the same day, the Austrian foreign ministry published the text of a resolution on Austria’s permanent neutrality to be placed before the national legislature. The last Allied troops left Austria on 24 October 1955, and on 25 October, Austria became a completely free and sovereign country.6 This date of the formal ending of the occupation is not necessarily the same as the date of the re-emergence of the Austrian State. Clute has persuasively argued that 28 June 1946 – the date of a new agreement concluded by the four occupying powers – can be inter- preted as the real date of “the re-emergence of the Austrian State and a government capable of acting on its behalf.” The 1955 Austrian State Treaty “merely confirmed the existence of an independent Austrian State and contributed to its stability by creating the conditions for a termination of the occupation, but did not create or re-establish the Austrian State.” 7 Another example of an occupation ending with a negotiated withdrawal by the occupying forces was the Israeli occupation of Sinai, which had begun in 1967, and which was con- cluded with a phased evacuation between 1979 and 1982 in accord with the terms of the Egypt–Israel Peace Treaty signed in Washington in March 1979.
B. CONTINUED PRESENCE OF FOREIGN FORCES
However, there are instances where an occupation is declared or widely presumed to have ended, but the occupant’s forces remain in the country. This can happen, for example, if a treaty ending an occupation is accompanied by another one permitting the presence of foreign forces. Alternatively, it may happen in a less formal way.
In Japan on 28 April 1952, a Peace Treaty ending the US military occupation of the country took effect, and simultaneously a Security Treaty came into force, providing for a continued US military presence.8
Likewise, in West Germany on 5 May 1955, a number of agreements took effect simulta- neously, including one that ended the last vestiges of the three-power occupation, one that provided for the continued presence of the same three countries’ forces in West Germany, and others that provided for the entry of West Germany into the North Atlantic Treaty Organization and the Western European Union.9
As for East Germany, a Soviet Government statement of 25 March 1954 ended the Soviet “supervision of the activities of the German Democratic Republic,” and also specified that the Soviet Union would retain in East Germany its functions connected with guaranteeing security – which of course meant that Soviet troops remained.10 This formal ending of occu- pation, with external troops remaining in place, was not universally accepted. West German official publications continued for many years thereafter to refer to East Germany as the “Soviet Occupation Zone.”
The complexity of the ending of occupations, illustrating the many gradations that can be involved, is illustrated by the case of Germany, and more particularly by the city of Berlin. For decades, Berlin remained in the time-warp of the four-power occupation, although the
6 Keesing’s Contemporary Archives, 14193-8 and 14561.
7 R.E. Clute, The International Legal Status of Austria 1938-1955, Nijhoff, The Hague, 1962, 345 and 132.
8 For texts of these two treaties, both of which had been signed on 8 September 1951, see United Nations Treaty Series, Vol. 136,
pp. 46 and 216.
9 For details of the agreements on West Germany, see B. Ruhm von Oppen, Documents on Germany under Occupation 1945-
1954, Oxford University Press, Oxford, 1955, 600-48. Most of the occupants’ powers of intervention in West German domestic affairs had already been abolished in the Convention on Relations Between the Three Western Powers and the Federal Republic, signed on 26 May 1952. Text ibid. 616-17.
10 Ibid. 597-8. In 1955, several further steps were taken, including the opening of diplomatic relations between the USSR and the
powers of the Allies were minimal and residual.11 The occupation of Berlin, and the divi- sion of Germany, were finally brought to a formal conclusion through the September 1990 Treaty signed by East Germany, West Germany, and the four occupying powers: but the four-power forces were permitted to remain in Berlin until the end of 1994.12 At midnight on 2–3 October 1990, East Germany ceased to exist, becoming part of the Federal Republic of Germany.13
In the cases of both Japan and Germany, a key reason for foreign forces remaining in the country after the formal ending of occupation was the need for defence against an external threat. In Japan and West Germany, the continued presence of external forces does not appear to have undermined or threatened the resumption of sovereignty by these States or their independent decision-making capacity.
C. ACTS OF SELF-DETERMINATION
An essential feature of the ending of an occupation is often, though not always, an act of self-determination involving the inhabitants of the occupied territory. This act of self- determination may well require, as prerequisite or consequence, the withdrawal of for- eign forces. In the period since the late 1960s, the international community has favoured self-determination in respect of at least five occupations – those of Namibia, the West Bank and Gaza, Cambodia, East Timor and Western Sahara.14 In all five cases the withdrawal of foreign forces has been seen as one key aspect of the ending of occupa- tion. External armed forces remain in place only in those cases in which the occupa- tion has not (or at least not completely) ended – i.e. the West Bank and Western Sahara. Important as acts of self-determination are, they cannot be the sole decisive criterion for determining when an occupation ends. The case for self-determination has not been pressed where an occupied territory is widely accepted as being part of an existing State, from which it has been forcefully separated and to which it may be expected eventually to revert. A case in point is northern Cyprus: any act of self-determination there might well be seen as a threat to the sovereignty and territorial integrity of Cyprus, and as a victory for the Turkish invasion and occupation. There the key test of the ending of occupation is more likely to be an agreement on constitutional arrangements for the whole of Cyprus, and the withdrawal of Turkish armed forces and personnel from the North.
11 Berlin was the subject of the four-power agreement of 3 September 1971, but this mentions neither the word ‘occupation’ nor
the word ‘Berlin.’ For one earlier assessment of the legal status of Berlin, see the chapter by J.W. Bishop in Roland J. Stanger (ed.), West Berlin: The Legal Context, Ohio State University Press, Columbus, Ohio, 1966. A later and more comprehensive survey is I.D. Hendry and M.C. Wood, The Legal Status of Berlin, Grotius Publications, Cambridge, 1987.
12 Treaty on the Final Settlement with Respect to Germany, signed in Moscow on 12 September 1990. International Legal Materials,
Vol. 29, 1186. Art. 4 specifies that the withdrawal of Soviet forces from “the territory of the present German Democratic Republic and of Berlin (…) will be completed by the end of 1994 …” Art. 5 provides that, for the duration of the presence of these Soviet forces, French, UK and US forces “will, upon German request, remain stationed in Berlin by agreement to this effect …” Art. 7 says that France, USSR, UK and USA “hereby terminate their rights and responsibilities relating to Berlin and to Germany as a whole.”
13 Keesing’s Record of World Events, 37761. A four-power declaration signed on 1 October 1990 in New York by France, UK, USA
and USSR conferred full sovereignty on the new unified Germany pending formal ratification of the 12 September treaty by the legislatures of the parties.
14 UN General Assembly resolutions can be taken as one (albeit imperfect) measure of international opinion on the question of
self-determination for occupied territories. On the five cases cited, see, e.g. GA Res. 2403 (XXIII) of 16 December 1968, and 43/26 of 17 November 1988 (both on Namibia); GA Res. 2672C (XXV) of 8 December 1970 (the first of many calling for self- determination for the Israeli-occupied Palestinian territories); GA Res. 36/5 of 21 October 1981, and 43/19 of 3 November 1988 (both on Cambodia); GA Res. 36/50 of 24 November 1981 (on East Timor); GA Res. 38/40 of 7 December 1983, and 43/33 of 22