Military occupation

Occupied territories in July 2018

   Occupied by Armenia
   Occupied by Israel
   Occupied by Morocco
   Occupied by Russia
   Occupied by Turkey
Military occupation is effective
provisional control by a certain ruling
power over a territory which is not under
the formal sovereignty of that entity,
without the violation of the actual
sovereign.[1][2][3][4] Military occupation is
distinguished from annexation by its
intended temporary nature (i.e. no claim
for permanent sovereignty), by its military
nature, and by citizenship rights of the
controlling power not being conferred
upon the subjugated population.[2][5][6][7]

Military government may be broadly

characterized as the administration or
supervision of occupied territory, or as
the governmental form of such an
administration. Military government is
distinguished from martial law, which is
the temporary rule by domestic armed
forces over disturbed areas.

The rules of military government are

delineated in various international
agreements, primarily the Hague
Convention of 1907, the Geneva
Conventions of 1949, as well as
established state practice. The relevant
international conventions, the
International Committee of the Red
Cross (ICRC) Commentaries, and other
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 which are very important
both before and after the cessation of
hostilities. A country that establishes a
military government and violates
internationally agreed upon norms runs
the risk of censure, criticism, or
condemnation. In the current era, the
practices of military government have
largely become a part of customary
international law, and form a part of the
laws of war.
Article 42 of the 1907 Hague Convention
on Land Warfare 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". The terminology of
"occupation" is used exclusively.

Military occupation and the

laws of war
From the second half of the 18th century
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
clear distinction has been recognized
among the principles of international law
since the end of the Napoleonic wars in
the 19th century. 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 Convention of 1907 further
clarified and supplemented 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."[8] 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.
Beginning of military
government

German troops parade down the Champs-Élysées in

Paris after their victory in the Franco-Prussian War
(1870-71)

There does not have to be a formal

announcement of the beginning of
"military government," nor is there any
requirement of a specific number of
people to be in place, or "on site" before
military government can be said to have
commenced.
See Birkhimer, p. 25–26:

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.

The occupying power

The terminology of "the occupying

power" as spoken of in the laws of war is
most properly rendered as "the principal
occupying power," or alternatively as "the
occupying power." This is because the
law of agency is always available (When
the administrative authority for the
military occupation of particular areas is
delegated to other troops, a "principal --
agent" relationship is in effect).[9]
Because the law of agency is a very
general pattern, primarily appliable in this
case as the means of regulating the
relationships between the said "powers",
but a question however in which
considerations of logistics are
sometimes to be taken in consideration,
that definition is not always appliable
outside of those contexts which can be
analysed by analogy as related to
warlording, even though it does relate
more generally to all possible types of
military coalitions.

In most contexts determined by the

application of the defined and modern
laws of war, delegation to agencies
generally tends to relating to civilian
organizations. Juridical considerations
like the above remain in the other cases
merely consensual between the said
powers. For example, in 1948 the U.S.
Military Tribunal in Nuremberg states:

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.
This can be seen from Article 42
of the Hague Regulations which
 grants certain well limited
rights to a military occupant
only in enemy territory which is
'actually placed' under his
control.

[10]

The conqueror is the principal occupying

power.

End of military government

Rule: Military occupation continues until

legally supplanted. According to Eyal
Benvenisti, military 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."[11]

This is explained as follows. For the

situation where no territorial cession is
involved, the military government of the
principal occupying power will end with
the coming into force of the peace
settlement.

Example: (1) Japan after WWII. Japan

regained its sovereignty with the
coming into force of the San Francisco
Peace Treaty on April 28, 1952. In
other words, a civil government for
Japan was in place and functioning as
of this date.

In the situation of a territorial cession,

there must be a formal peace treaty.
However, the military government of the
principal occupying power does not end
with the coming into force of the peace
treaty.
 Example: (1) Puerto Rico after the
Spanish–American War. Military
government continued in Puerto Rico
past the coming into force of the
Treaty of Paris of 1898 on April 11,
1899, and only ended on May 1, 1900
with the beginning of Puerto Rico's civil
government.
Example: (2) Cuba after the Spanish–
American War. Military government
continued in Cuba past the coming into
force of the Treaty of Paris of 1898 on
April 11, 1899, and only ended on May
20, 1902 with the beginning of the
Republic of Cuba's civil government.

Hence, at the most basic level, the

terminology of "legally supplanted" is
interpreted to mean "legally supplanted
by a civil government fully recognized by
the national (or "federal") government of
the principal occupying power."

Examples of military
occupations

German stamp inscribed with "Soviet Occupation

Zone", 1948

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.
Sometimes the status of presences is
disputed by a party to the situation.

Military occupation is usually a

temporary phase, preceding either the
handing back of the territory, or its
annexation. The world's longest ongoing
military occupation, and the longest in
modern times by one single occupying
power, is Israel’s occupation of the West
Bank and East Jerusalem (1967–
present).[12]

The War Report: Armed Conflict in 2014

(2015) reports (p. 24), "Other belligerent
occupations that have been alleged
include the occupation by the United
Kingdom of the Falkland
Islands/Malvinas (Argentina claims this
as sovereign territory), of Tibet by China,
and of the Kingdom of Hawaii by the
United States. The War Report makes no
determination as to whether belligerent
occupation is occurring in these cases."

See also
German-occupied Europe
 Allied-occupied Germany
Rule of Law in Armed Conflicts Project
Ex parte Milligan

References
1. A Roberts. Prolonged Military
Occupation: The Israeli-Occupied
Territories Since 1967 - Am. J. Int'l L.,
1990, p. 47.
2. Eyāl Benveniśtî. The international law of
occupation. Princeton University Press,
2004. ISBN 0-691-12130-3, ISBN 978-0-
691-12130-7, p. xvi
3. Eran Halperin, Daniel Bar-Tal, Keren
Sharvit, Nimrod Rosler and Amiram Raviv.
Socio-psychological implications for an
occupying society: The case of Israel.
Journal of Peace Research 2010; 47; 59
4. During civil wars, the districts occupied
by rebels are considered to be
foreign.Military Government and Martial
Law LLMC, p. 21. [1]
5. David M. Edelstein. Occupational
Hazards: Why Military Occupations
Succeed or Fail. Journal of Peace
Research 2010; 47; 59
6. Phillipson, Coleman (1916).
Termination of War and Treaties of
Peace . The Lawbook Exchange. p. 10.
ISBN 9781584778608. “The difference
between effective military occupation (or
conquest) and annexation involves a
profound difference in the rights
conferred by each”
7. Stirk, Peter (2009). The Politics of
Military Occupation . Edinburgh University
Press. p. 44. ISBN 9780748636716. “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”
8. 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
9. Anonymous. "Chapter 5 – Definitions of
Important Terminology and Concepts
Related to Territorial Cessions". The True
Legal Relationship between Taiwan & the
USA . www.taiwanbasic.com. Retrieved
13 December 2013.
10. Yutaka Arai Takahashi (2009). The
Law of Occupation: Continuity and
Change of International Humanitarian
Law. p. 7. ISBN 978-90-04-16246-4.
11. Eyal Benvenisti (23 February 2012).
The International Law of Occupation .
OUP Oxford. p. 56. ISBN 978-0-19-163957-
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.”
12. The majority of the international
community (including the UN General
Assembly, the United Nations Security
Council, the European Union, the
International Criminal Court, and the vast
majority of human rights organizations)
considers Israel to be occupying Gaza, the
West Bank and East Jerusalem.
The government of Israel and some
supporters have, at times, disputed this
position of the international community.
For more details of this terminology
dispute, including with respect to the
current status of the Gaza Strip, see
International views on the Israeli-occupied
territories and Status of territories
captured by Israel.
See for example:
* Hajjar, Lisa (2005). Courting Conflict:
The Israeli Military Court System in the
West Bank and Gaza . University of
California Press. p. 96. ISBN 0520241940.
“The Israeli occupation of the West Bank
and Gaza is the longest military
occupation in modern times.”
* Anderson, Perry (July–August 2001).
"Editorial: Scurrying Towards Bethlehem" .
New Left Review. 10. “...longest official
military occupation of modern history—
currently entering its thirty-fifth year”
* Makdisi, Saree (2010). Palestine Inside
Out: An Everyday Occupation . W. W.
Norton & Company.
ISBN 9780393338447. “...longest-lasting
military occupation of the modern age”
* Kretzmer, David (Spring 2012). "The law
of belligerent occupation in the Supreme
Court of Israel" (PDF). International
Review of the Red Cross. 94 (885).
doi:10.1017/S1816383112000446 . “This
is probably the longest occupation in
modern international relations, and it
holds a central place in all literature on
the law of belligerent occupation since
the early 1970s”
* Said, Edward (2003). Culture and
Resistance: Conversations with Edward
W. Said . Pluto Press. p. 33.
ISBN 9780745320175. “These are
settlements and a military occupation
that is the longest in the twentieth and
twenty-first century, the longest formerly
being the Japanese occupation of Korea
from 1910 to 1945. So this is thirty-three
years old, pushing the record.”
*Alexandrowicz, Ra'anan (24 January
2012), The Justice of Occupation , The
New York Times, “Israel is the only
modern state that has held territories
under military occupation for over four
decades”
* Weill, Sharon (2014). The Role of
National Courts in Applying International
Humanitarian Law . Oxford University
Press. p. 22. ISBN 9780199685424.
“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.”

Further reading
Wikimedia Commons has media related
to Military occupation.

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, 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 978-90-70062-
45-3 Openacces
Belligerent Occupation
The Law of Belligerent Occupation
Michal N. Schmitt (regarding
occupation of Iraq)
Law of Belligerent Occupation , Judge
Advocate General's School, United
States Army
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 [2]
Bellal, A. (editor). (2015) The war
report: Armed conflict in 2014 . United
Kingdom: Oxford University Press.

Retrieved from
"https://en.wikipedia.org/w/index.php?
title=Military_occupation&oldid=850002877"

Last edited 15 days ago by JFG

Content is available under CC BY-SA 3.0 unless

otherwise noted.