Military occupation, also called belligerent occupation or simply occupation, is the temporary control exerted by a ruling power's military apparatus over a sovereign territory that is outside of the legal boundaries of the ruling power's own sovereign territory.[1][2][3][4] The controlled territory is then known as the occupied territory, with the ruling power being the occupant.[5] Occupation is distinguished from annexation and colonialism on the basis that it is a power structure that the ruling power intends to keep in place only temporarily.[4][6] In many cases, an occupant may establish a military government to facilitate the administration of the occupied territory, though this is not a necessary precondition for occupation to take place.[7]
The rules of occupation are delineated in various international agreements—primarily the Hague Convention of 1907, the Geneva Conventions, and by long-established state practice. The relevant international conventions, the International Committee of the Red Cross, and various treaties by military scholars provide guidelines on such topics as rights and duties of the occupying power, protection of civilians, treatment of prisoners of war, coordination of relief efforts, issuance of travel documents, property rights of the populace, handling of cultural and art objects, management of refugees, and other concerns that are highest in importance both before and after the cessation of hostilities in an armed conflict. A country that engages in a military occupation and violates internationally agreed-upon norms runs the risk of censure, criticism, or condemnation. In the contemporary era, the practices of occupations have largely become a part of customary international law, and form a part of the law of war.
Since World War II and the establishment of the United Nations, it has been common practice in international law for occupied territory to continue to be widely recognized as occupied in cases where the occupant attempts to alter—with or without support or recognition from other powers—the expected temporary duration of the territory's established power structure, namely by making it permanent through annexation (formal or otherwise) and not recognizing itself as an occupant. Additionally, the question of whether a territory is occupied or not becomes especially controversial if two or more powers disagree with each other on that territory's status; such disputes often serve as the basis for armed conflicts in and of themselves.
Occupation and the laws of war
A dominant principle that guided combatants through much of history was "to the victory belong the spoils".[8]Emer de Vattel, in The Law of Nations (1758), presented an early codification of the distinction between annexation of territory and military occupation, the latter being regarded as temporary, due to the natural right of states to their "continued existence".[8] According to Eyal Benvenisti's The International Law of Occupation, Second Edition (2012), "The foundation upon which the entire [modern] law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power, [and from this principle] springs the basic structural constraints that international law imposes upon the occupant."[9]
The Hague Convention of 1907 codified these customary laws, specifically within "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State".[10] The first two articles of that section state:
Art. 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.
Art. 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.
In 1949 these laws governing the occupation of an enemy state's territory were further extended by the adoption of the Fourth Geneva Convention (GCIV). Much of GCIV is relevant to protected civilians in occupied territories and Section III: Occupied territories is a specific section covering the issue. Under GCIV, protected civilians in general are:[11]
those "who ... find themselves ... in the hands of a Party to the conflict or Occupying Power of which they are not nationals".[12] This generally refers to civilians of an enemy state, including refugees, and stateless persons.
neutral citizens in occupied territory regardless of diplomatic status
refugees of the occupying power prior to hostilities who cannot be arrested, prosecuted, or deported from occupied territory except for crimes committed after the conflict or beforehand which are also crimes under the law of the occupied state that would permit peacetime extradition as defined under Article 70[13]
Nationals of an enemy state not a signatory or acceded to GCIV are not protected by it. Neutral citizens who are in the home territory of a belligerent nation if their country of origin has diplomatic ties or elsewhere outside occupied territory are not protected.[nb 1] Nationals of a co-belligerent (allied) state which holds diplomatic ties with a belligerent nation are excluded from protection in both locations.[11]
On whether the definition of military occupation applies to anywhere else, the 2023 United States Department of Defense (DOD)'s Law of War Manual states "the law of belligerent occupation generally does not apply to (1) mere invasion; (2) liberation of friendly territory; (3) non-international armed conflict; or (4) post-war situations (except for certain provisions of the GC [IV])." The DOD's statement is consistent with the definitions provided by Article 42 of the 1907 Fourth Hague Convention and Article 4 of the Fourth Geneva Convention.[16]
Article 6 of GCIV restricts the length of time that most of the convention applies:
The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.
In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.
GCIV emphasised an important change in international law. The United Nations Charter (June 26, 1945) had prohibited war of aggression (See articles 1.1, 2.3, 2.4) and GCIV Article 47, the first paragraph in Section III: Occupied territories, restricted the territorial gains which could be made through war by stating:
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.
Article 49 prohibits the forced mass movement of protected civilians out of or into occupied state's territory:
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. ... The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Protocol I (1977): "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" has additional articles which cover occupation but many countries including the U.S. are not signatory to this additional protocol.
In the situation of a territorial cession as the result of war, the specification of a "receiving country" in the peace treaty merely means that the country in question is authorized by the international community to establish civil government in the territory. The military government of the principal occupying power will continue past the point in time when the peace treaty comes into force, until it is legally supplanted.
"Military government continues until legally supplanted" is the rule, as stated in Military Government and Martial Law, by William E. Birkhimer, 3rd edition 1914.
Article 42 under Section III of the 1907 Fourth Hague Convention specifies that a "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army." The form of administration by which an occupying power exercises government authority over occupied territory is called military government. Neither the Hague Conventions nor the Geneva Conventions specifically define or distinguish an act of "invasion". Article 2 of the Geneva Conventions expanded on this to include situations in which no armed resistance is encountered.[17]
There does not have to be a formal announcement of the beginning of a military government, nor is there any requirement of a specific number of people to be in place, for an occupation to commence. Birkhimer writes:
No proclamation of part of the victorious commander is necessary to the lawful inauguration and enforcement of military government. That government results from the fact that the former sovereignty is ousted, and the opposing army now has control. Yet the issuing such proclamation is useful as publishing to all living in the district occupied those rules of conduct which will govern the conqueror in the exercise of his authority. Wellington, indeed, as previously mentioned, said that the commander is bound to lay down distinctly the rules according to which his will is to be carried out. But the laws of war do not imperatively require this, and in very many instances it is not done. When it is not, the mere fact that the country is militarily occupied by the enemy is deemed sufficient notification to all concerned that the regular has been supplanted by a military government. (p. 61)
Concept of effective control
The effective control of a territory by the occupying power mentioned in Article 42[nb 2] of the 1907 Fourth Hague Convention should not be read too narrowly.[18] The survey of the case-law reveals that the temporal duration of effective control by the occupying power and its encounter with insurgents, terrorists or guerillas that are able to exercise control over certain areas of the country are immaterial to the applicability of the law of occupation and do not alter the legal status of the occupied territory. For example, in 1948 the U.S. Military Tribunal in Nuremberg held that:
In belligerent occupation the occupying power does not hold enemy territory by virtue of any legal right. On the contrary, it merely exercises a precarious and temporary actual control.[18]
End of occupation and authority shift
According to Eyal Benvenisti, occupation can end in a number of ways, such as: "loss of effective control, namely when the occupant is no longer capable of exercising its authority; through the genuine consent of the sovereign (the ousted government or an indigenous one) by the signing of a peace agreement; or by transferring authority to an indigenous government endorsed by the occupied population through referendum and which has received international recognition".[19]
Other prolonged occupations that have been alleged include those of the Falkland Islands/Malvinas, claimed by Argentina, by the United Kingdom (1833–present), of Tibet by PR China (1950), and of Hawaii by the United States (1893). The War Report makes no determination as to whether belligerent occupation is occurring in these cases.[22]
Examples of occupation which took place in the second half of the 20th century include:
^GCIV only applies the protection of neutral citizens in either occupied territory or in the home territory of a belligerent nation if their country of origin has no diplomatic ties. It was never intended to protect such nationals anywhere else in the world.[14] Thus, the protection of neutral nationals who are outside the two locations mentioned in the preceding sentence are governed by the 1907 Fifth and 13th Hague Conventions.[15]
^According to article 42 of the 1907 Fourth Hague Convention, "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself."[18]
References
^Bracka, J. (2021). Transitional Justice for Israel/Palestine: Truth-Telling and Empathy in Ongoing Conflict. Springer series in transitional justice. Springer International Publishing AG. ISBN978-3-030-89435-1. Today, the widely accepted definition of occupation is 'the effective control of a power (be it one or more states or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory'
^Roberts, Adam (1990). "Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967". American Journal of International Law. 84 (1). Cambridge University Press (CUP): 44–103. doi:10.2307/2203016. ISSN0002-9300. JSTOR2203016. S2CID145514740.
^Stirk, Peter (2009). The Politics of Military Occupation. Edinburgh University Press. p. 44. ISBN9780748636716. The significance of the temporary nature of military occupation is that it brings about no change of allegiance. Military government remains an alien government whether of short or long duration, though prolonged occupation may encourage the occupying power to change military occupation into something else, namely annexation
^Roberts, Adam (1985). "What is a Military Occupation?". British Yearbook of International Law. 55: 249–305. doi:10.1093/bybil/55.1.249.
^ abCole, Babaloba (1974). "Property and the Law of Belligerent Occupation: A Reexamination". World Affairs. 137 (1): 66–85. JSTOR20671544.
^Benvenisti, Eyal (2012). The International Law of Occupation, Second Edition. Great Clarendon Street, Oxford OX2 6DP, United Kingdom: Oxford University Press. p. 6. ISBN978-0-19-958889-3. The foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power, whether through the actual or the threatened use of force, or in any way unauthorized by the sovereign. Effective control by foreign military force can never bring about by itself a valid transfer of sovereignty. Because occupation does not transfer sovereignty over the territory to the occupying power, international law must regulate the inter-relationships between the occupying force, the ousted government, and the local inhabitants for the duration of the occupation. From the principle of inalienable sovereignty over a territory springs the basic structural constraints that international law imposes upon the occupant. The occupying power is thus precluded from annexing the occupied territory or otherwise unilaterally changing its political status; instead, it is bound to respect and maintain the political and other institutions that exist in that territory for the duration of the occupation. The law authorizes the occupant to safeguard its interests while administering the occupied area, but also imposes obligations on the occupant to protect the life and property of the inhabitants and to respect the sovereign interests of the ousted government.((cite book)): CS1 maint: location (link)
^Eyal Benvenisti (23 February 2012). The International Law of Occupation. OUP Oxford. p. 56. ISBN978-0-19-163957-9. The conditions that define when occupation begins also identify when it ends. Obviously, occupation can end in a number of ways: with the loss of effective control, namely when the occupant is no longer capable of exercising its authority; through the genuine consent of the sovereign (the ousted government or an indigenous one) by the signing of a peace agreement; or by transferring authority to an indigenous government endorsed by the occupied population through referendum and which has received international recognition.
^Weill, Sharon (2014). The Role of National Courts in Applying International Humanitarian Law. Oxford University Press. p. 22. ISBN9780199685424. Although the basic philosophy behind the law of military occupation is that it is a temporary situation modem occupations have well demonstrated that rien ne dure comme le provisoire A significant number of post-1945 occupations have lasted more than two decades such as the occupations of Namibia by South Africa and of East Timor by Indonesia as well as the ongoing occupations of Northern Cyprus by Turkey and of Western Sahara by Morocco. The Israeli occupation of the Palestinian territories, which is the longest in all occupation's history has already entered its fifth decade.
Occupied territory – the legal issues, legal provisions regarding occupation of territory by hostile power and implications for people protected by IHL.
David Kretzmer, Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. State University of New York Press, 2002. ISBN0-7914-5338-3; ISBN0-7914-5337-5
Sander D. Dikker Hupkes, What Constitutes Occupation? Israel as the occupying power in the Gaza Strip after the Disengagement, Leiden: Jongbloed 2008, 110 pages, ISBN978-90-70062-45-3Openacces
Military Government and Martial Law, by William E. Birkhimer, third edition, revised (1914), Kansas City, Missouri, Franklin Hudson Publishing Co.
FM 27-10 "The Law of Land Warfare", DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., 18 July 1956. (This manual supersedes FM 27–10, 1 October 1940, including C 1, 15 November 1944. Changes required on 15 July 1976, have been incorporated within this document.) Chapter 6, OCCUPATION
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