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Hague Convention Martens Clause Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases n

Hague Convention

Martens Clause

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

Article 20

After the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible.

Article 42

Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.

Article 43

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

International Law

Refugee law

A. For the purposes of the present Convention, the term “refugee” shall apply to any person who: As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...
C. This Convention shall cease to apply to any person falling under the terms of section A if: (1) He has voluntarily re-availed himself of the protection of the country of his nationality; or (2) Having lost his nationality, he has voluntarily re-acquired it; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or ...

Freedom of Movement

Law of War

The Hague Regulations do not refer to the question of deportation; this was probably because the practice of deporting persons was regarded at the beginning of this century as having fallen into abeyance. The events of the last few years have, however, made it necessary to make more detailed provisions on this point which may be regarded to-day as having been embodied in international law (5).
(5) [(3) p.279] This view is not expressed in the Convention alone. The Charter of the Nuremberg International Military Tribunal laid down in its Article 6 (b) that "deportation to slave-labour or for any other purpose" was a "war crime"; sub-paragraph (c) of the same Article includes "deportations and other inhuman acts done against any civilian population" among "the crimes against humanity". In its judgment delivered on September 30, 1946, the Tribunal agreed that deportation was illegal. A great many other decisions by other courts which have had to deal with this question have also stated that the deportation of inhabitants of occupied territory is contrary to the laws and customs of war;
The first written rule prohibiting the forced displacement of civilians in armed conflict is to be found in Article 23 of the Lieber Code, according to which '[p]rivate citizens are no longer murdered, enslaved, or carried off to distant parts'. The Lieber Code represents the first codification of the laws of war. Although initially aimed at the US armed forced in the specific context of the American Civil War, the Code is widely regarded as the precursor of the 1899 and 1907 Hague Conventions.
And, yet, the Hague Conventions make no reference to a similar prohibition of deportation or forcible transfer of civilians. p.22-23

Law of Nationality

While international law provides no definite rule, it is generally stated by publicists and writers or international law that the inhabitants of ceded territory automatically lose their old political allegiance and acquire that of the annexing state.

Treaties

Not categorized

Refugees

Bosnians

The prohibition of population transfers is contained in the Fourth Geneva Convention of 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950), and in Additional Protocol II of 1977, Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflict, June 8, 1977, art 17, 1125 U.N.T.S. 609 (entered into force Oct. 21, 1978). Moreover, the International Military Tribunal at Nuremburg prosecuted the deportation of the native population and the implantation of settlers in occupied areas as both a war crime and a crime against humanity.

Palestinians

In cases where persons had been forced to leave their country because of force majeure, such as war, the right of return could not be questioned. So natural was this principle considered, so axiomatic a corollary to the fundamental considered self-evident.
Accordingly, it must be logically obvious that the rule of humanitarian law requiring the repatriation of prisoners of war following the cessation of hostilities (which is stated in Article 20 of the Hague Regulations) must necessarily include a rule requiring the repatriation of civilian residents to their place of origin following the cessation of hostilities.
The text of paragraph 11 appears to have been written on the assumption that the principle or right of return was not in issue and that the central task was achieving practical implementation of repatriation.
Like resolution 194 (III), it appears to be written upon the assumption that the right of return is established and that the central task is to obtain its implementation.
If taken to their logical conclusion, Kent’s arguments in effect mean that none of the norms, rules, conventions, or legal principles that govern armed conflict applied to the situation in Palestine in 1947-48, with the result that Palestine was in some sort of legal vacuum. This was contrary to the reality at the time.

US Position

One example of the former policy occurred after the 1948 War, when the United States pressured Israel to agree to the recommendations of Count Folk Bernadotte, 159 the U.N.

Greek-Cypriots

Sudeten Germans

The Czech side regrets that, by the forcible expulsion and forced resettlement of Sudeten Germans from the former Czechoslovakia after the war as well as by the expropriation and deprivation of citizenship, much suffering and injustice was inflicted upon innocent people, also in view of the fact that guilt was attributed collectively. It particularly regrets the excesses which were contrary to elementary humanitarian principles as well as legal norms existing at that time

Children to refugees

This makes clear that the practice of registering descendants of refugees is not disputed. ... As made clear in the criteria for derivative status above, in all cases, refugees and their descendants retain the status of refugees until that status lapses through the achievement of a just and lasting solution. Again, I will allow published UNHCR documents to speak for themselves. (statement by UNRWA spokesman Chris Gunness)
for UNHCR, refugee status ends when refugees are able to avail themselves of the protection of another state, usually through acquiring citizenship. Refugees who are unable to do so maintain their status, and their children are considered to have "derivative status."
If the head of a family meets the criteria of the definition, [for refugee status] his dependants are normally granted refugee status according to the principle of family unity.
individuals who obtain derivative refugee status enjoy the same rights and entitlements as other recognised refugees and should retain this status notwithstanding the subsequent dissolution of the family through separation, divorce, death, or the fact that the child reaches the age of majority.

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