论军事占领法律制度的产生、发展及当代挑战

On the Evolution,Development and Contemporary Challenges of the Law of Military Occupation

军事占领作为独立的法律概念源于其与武力征服之分离。军事占领法律制度在19世纪末通过系列法律文件得到确立。《海牙章程》不仅从法律上对军事占领做出界定,还确立了"军事占领不转移主权原则"与"维持社会现状原则"。二战后,日内瓦公约及其第一附加议定书对军事占领法律制度予以完善,增设的"保护平民居民基本权利原则"进一步彰显了武装冲突法之人道理念;对违反占领规则惩治措施的出台,标志着军事占领法律制度的成熟与完善。近年来,军队对他国领土控制方式的改变引发了占领状态判断标准的认定问题,长期占领的存在则引发了被占领土的社会发展滞后问题。

Military occupation becoming an independent legal concept is the result of its separation from conquest. The law of military occupation was established by a series of documents in the end of 19 th century. Among them,the 1907 Hague Regulations were the most comprehensive. They establish basic principles such as ‘Military occupation does not change sovereign＇and ‘To keep existing social situations＇. After the second world war,the Geneva Conventions and their additional protocolⅠ reaffirm and perfect the rules of military occupation. The additional principle ‘to protect the fundamental rights of civilian population＇further demonstrates the humanitarian ideas. The rules to punish the violations of occupation law symbol that the legal system of the military occupation is becoming mature and perfect. In recent years,the ways to control foreign territories has changed a lot,which triggers the problem of how to judge if the occupation exist or not. Another problem is caused by long-term occupation,which resnlts social development delay in occupied territories.