Part II Specific Issues and Regimes, C Geneva Convention IV, 5 Occupied territories, Ch.68 Law-Making and the Judicial Guarantees in Occupied Territories »
Yutaka Arai-Takahashi
From: The 1949 Geneva Conventions: A Commentary
Edited By: Andrew Clapham, Paola Gaeta, Marco Sassòli
This chapter focuses on Article 64 of Geneva Convention (GC) IV, which gives the Occupying Power a broader ambit of legislative authority in occupied territories. In exceptional circumstances, the Occupying Power is not only allowed to change the laws in force, but is even bound to enact laws pursuant to the objective of giving effect to the obligations under GC IV. Such prescriptive power is recognized especially for the benefit of the local civilian population. The chapter analyses the extent to which Occupying Powers’ invocation of exceptional grounds allows them to exercise prescriptive powers under Article 64 GC IV. Specific issues are also examined, such as local administrations and judiciary in occupied territories, occupation courts, and the protection of refugees. The implications of the relevant rules of occupation to non-international armed conflict and the legal consequences of violations of the rules of occupation are also assessed.
Part III Structural Principles, Ch.19 Proportionality »
Yutaka Arai-Takahashi
From: The Oxford Handbook of International Human Rights Law
Edited By: Dinah Shelton
This article examines the principle of proportionality in the context of international human rights law. It traces the origin of this principle in the eighteenth century Prussian administrative law and explains that three tests of proportionality. It considers the proportionality analysis by the European Court of Human Rights (ECtHR) and the Inter-American System and discusses the application of the principle of proportionality by the United Nations Human Rights Committee (UNHRC). This article argues that this principle serves as an analytical and structural method for assessing national decisions and fosters trust in the international judicial and quasi-judicial bodies� supervisory roles.
Part II Specific Issues and Regimes, C Geneva Convention IV, 5 Occupied territories, Ch.71 Protection of Private Property »
Yutaka Arai-Takahashi
From: The 1949 Geneva Conventions: A Commentary
Edited By: Andrew Clapham, Paola Gaeta, Marco Sassòli
This chapter analyses the protection of property in occupied territories under Article 53 Geneva Convention (GC) IV, the prohibition of pillage under Article 33 paragraph 2, and the destruction and appropriation of property as a grave breach of GC IV under Article 147. It first delineates the scope of application of the general rule under Article 53, examining how the concept of military necessity operates as an exception to this rule. It considers those rules that regulate issues of confiscation, requisition, and seizure of private property, as well as the special international humanitarian law rules that address distinct categories of property. The two final sections address the extent to which those distinct rules analysed in international armed conflict may be considered relevant in non-international armed conflict; and the violations of those rules as grave breaches under Article 147 and other germane rules of international criminal law.
