Military occupation

Belligerent military occupation occurs when the control and authority over a territory passes to a hostile army.

Military occupation and the laws of war

From the second half of the 1700's onwards, international law has come to distinguish between the military occupation of a country and territorial acquisition by invasion and annexation, the difference between the two being originally expounded upon by Emerich de Vattel in The Law of Nations (1758). The distinction then became clear and has been recognized among the principles of international law since the end of the Napoleonic wars in the 1800's. These customary laws of belligerent occupation which evolved as part of the laws of war gave some protection to the population under the military occupation of a belligerent power.

The Hague Conventions of 1907 further clarified and supplemented these customary laws. Specifically "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State."^[1] 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 belligerent 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 persons in occupied territories and Section III: Occupied territories is a specific section covering the issue.

Article 6 restricts the length of time that most of GCIV 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 people 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 military 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.

Examples of military occupations

In most wars some territory is placed under the authority of the hostile army. Most military occupations end with the cessation of hostilities. In some cases the occupied territory is returned and in others the land remains under the control of the occupying power but usually not as militarily occupied territory.

Disputed occupations

The following presences are often referred to as military occupations, but this status is disputed by a party to the situation.

Disputed to be a military occupation by local population

• Nagorno-Karabakh — occupied by Armenia, legal territory of Azerbaijan^[2]

Disputed to be a military occupation by the nation of military dominance in an area

• Tibet — A unified Tibetan empire was created in the 8th century, and fell apart a century later. Mongol conquests in the 13th century made Tibet part of a Mongol-ruled Chinese empire, and four centuries later the Manchu-ruled Qing Dynasty further incorporated Tibet into China.^[3] In 1914, the 13th Dalai Lama signed a treaty granting Chinese suzerainty over both "Inner Tibet" and "Outer Tibet" establishing direct rule over the former and leaving the latter autonomous.^[4] Subordination to China was reaffirmed in 1934.^[5][6] Chinese sovereignty was confirmed by both Beijing and the Tibetans^[7][8] after PLA occupied the Tibetan region of Chamdo. The region is still claimed by the Republic of China.
• Golan Heights — captured by Israel from Syria in 1967, de facto annexed by Israel in 1981 (but explicitly unrecognized by the UN see Golan heights#Current status)
• Gaza strip^[9][10] — occupied by Egypt in 1948 (except for four months of Israeli occupation during the 1956 Suez Crisis), occupied by Israel in 1967
  • In 2005 Israel instituted a unilateral disengagement plan, removing settlers and ground forces. However, disputes remain over whether Gaza effectively is occupied with most international organizations holding it is.
• West Bank^[11] — captured by Jordan in 1948 Arab-Israeli War and annexed in 1950, captured by Israel in 1967
  • Jordan proclaimed a relinquishment of sovereignty to the Palestinian Liberation Organization in 1988.
  • East Jerusalem was annexed by Israel in 1967 (incorporated into Israeli "Basic Law" in 1980) but the annexation is not recognized by the UN or European Union.
• Western Sahara — disputed between Morocco and the Polisario Front, with the latter considering it to be occupied.
• Lower Kuril Islands: Kunashir/Kunashiri, Iturup/Etorofu, Shikotan, Habomai — was annexed by USSR in 1945 (which considers the matter non-negotiable).
• Southern Cameroons - The Southern Cameroons Peoples Organization declares that the occupation of southern Cameroons is a military occupation by Cameroon and had infringed on the right of self-determination of the Southern Cameroons by forcibly occupying the territory since 1961, without the backing of any internationally recognized legal instrument^[12]
• Afghanistan

Other

• Occupation of parts of Kashmir by India (called "Indian occupied Kashmir" by Pakistan) and occupation of parts of Jammu and Kashmir by Pakistan (called "Pakistan occupied Kashmir" by India) in 1947. India considers Aksai Chin as occupied by PRC
• Cyprus: the northern part of the island, is occupied after a Turkish invasion in 1974 (see more at Cyprus dispute).^[13]

See also

• Occupied territories
• Rule of Law in Armed Conflicts Project (RULAC)
• Military government
• Nazi-occupied Europe
• Allied Occupation Zones in Germany
• Occupied Japan
• Palestinian territories

Further reading

• David Kretzmer, Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, State University of New York Press, April, 2002, trade paperback, 262 pages, ISBN 0-7914-5338-3; hardcover, July, 2002, ISBN 0-7914-5337-5
• Sander D. Dikker Hupkes, What Constitutes Occupation? Israel as the occupying power in the Gaza Strip after the Disengagement, Leiden: Jongbloed 2008, 110 pages, ISBN 9789070062453 Openacces
• Belligerent Occupation
• The Law of Belligerent Occupation Michal N. Schmitt (regarding occupation of Iraq)

Footnotes

1. ↑ Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State source The Avalon Project at the Yale Law School
2. ↑ Mr David Atkinson, United Kingdom, European Democrat Group, (Rapporteur) The conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference, Parliamentary Assembly of the Council of Europe, 29 November 2004
3. ↑ Grunfeld, A. Tom, "Reassess Tibet Policy", 2000
4. ↑ By the Simla Convention (1914) and its appendix Tibet identified itself as "under the suzerainty of China.....[forming] part of Chinese territory"[Article 2, Note 2]. Full text
5. ↑ Goldstein, Melvyn, "A History of Modern Tibet", pp239-241
6. ↑ India Office Records, IOR/L/PS/12/4175
7. ↑ Gyatso, Tenzin, Dalai Lama XIV, interview, 25 July 1981.
8. ↑ Goldstein, pp812-813
9. ↑ "Israel: 'Disengagement' Will Not End Gaza Occupation" Human Rights Watch. October 29, 2004
10. ↑ "Human Rights Council Special Session on the Occupied Palestinian Territories" July 6, 2006"
11. ↑ Israel considers the West Bank and Gaza Strip to be disputed rather than occupied territories. This opinion is based on the claim that a territory can be occupied only if prior to the entry of military forces that territory was part of a sovereign state. Because the West Bank and Gaza Strip were not recognised internationally as being an integral part of a sovereign state prior to the entry of Israeli military forces into them in June 1967, these territories logically cannot be regarded as occupied.
12. ↑ http://www.southerncameroonsig.org/2009/12/press-release-and-christmas-message-from-scapo-to-the-people-of-the-southern-cameroons.html
13. ↑ Staff. Greek Cypriot properties under Turkish military occupation © 2006 - 2008 Republic of Cyprus, Ministry of Foreign Affairs.

Attribution

Original content adapted from the Wikinfo article, "wikinfo:Belligerent occupation"