XI – Military Occupation - 11.2 WHEN MILITARY OCCUPATION LAW APPLIES

 

 

11.2 WHEN MILITARY OCCUPATION LAW APPLIES

 
The law of military occupation applies when a military occupation exists in fact.
Even if the requirements of the law of belligerent occupation do not apply as a matter of
law, general law of war principles and rules, such as those for the conduct of hostilities, continue to apply. 11.2.1 Military Occupation as a Fact. Military occupation is  a question of fact. The legal consequences arising from the fact of occupation (i.e., that this fact is the basis for both rights and duties) illustrates how the law of war may be viewed as both permissive and restrictive in nature. The fact of occupation is the basis for the Occupying Power to exercise authority over the occupied territory. The fact of occupation, as a requirement for the exercise of authority over the occupied territory, prevents a State from simply claiming the authorities of military government over an enemy territory without actually controlling such territory. The fact of occupation also imposes certain duties on the Occupying Power with respect to occupied territory. The fact of occupation, as a requirement for triggering the duties of an Occupying Power, means that a State that does not, in fact, occupy an area, does not incur the obligations of an Occupying Power.
Once an occupation exists in fact, regardless of whether the invasion was lawful or unlawful under jus ad bellum, the rights and duties of the Occupying Power and the population
in relation to each other apply. This application of the law of belligerent occupation is an
example of how jus in bello rules and jus ad bellum rules generally operate independently of one another. 11.2.2 Standard for Determining When Territory Is Considered  Occupied. Territory is considered occupied when it is actually placed under the authority of the hostile forces. This standard for when the law of belligerent occupation applies is reflected in Article 42 of the Hague IV Regulations and is regarded as customary international law.
11.2.2.1 “Actually Placed” – Effectiveness of Occupation. Military occupation
must be actual and effective; that is, the organized resistance must have been overcome, and the Occupying Power must have taken measures to establish its authority.
It is sufficient that the occupying force can, within a reasonable time, send detachments
of forces to enforce its authority within the occupied district. Military occupation does not
require the presence of military forces in every populated area, although the occupying force
must, inter alia, control the most important places.
The type of forces used to maintain the authority of the Occupying Power is not material.

 For example, the occupation might be maintained by permanently based units or mobile forces, either of which would be able to send detachments of forces to enforce the authority of the Occupying Power within the occupied district. However, air superiority alone would not constitute an effective occupation. Similarly, as long as the occupation is effective, there is no precise number of forces that are considered necessary to constitute an effective occupation. The number of forces necessary to maintain effective occupation will depend on various considerations, such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors. An occupation may be effective despite the existence of areas in the enemy State that are temporarily controlled by enemy forces or pockets of resistance. For example, the fact that a defended location (such as a city or town) still controlled by enemy forces exists within an area declared occupied by the Occupying Power does not render the occupation of the remainder of the area invalid, provided that continued resistance in such place or defended zone does not render the occupier unable to exercise control over the remainder of the occupied territory. Similarly, an occupation may continue to be effective despite intermittent insurgent attacks or temporary seizures of territory by resistance forces.
11.2.2.2 “Under the Authority” – Suspension and Substitution of Governmental
Authority. Occupation also requires the suspension of the territorial State’s authority and the
substitution of the Occupying Power’s authority for the territorial State’s authority.62
The territorial State must be rendered incapable of publicly exercising its authority in the territory, and the Occupying Power must substitute its authority for that of the territorial State. Invading forces in possession of the territory must have taken measures to establish their authority. For example, such measures may include establishing its own governmental
authority for that area and making regulations for the conduct of temporary government.65 The suspension and substitution of authority may take place with local authorities continuing to administer territory subject to the paramount authority of the Occupying Power. On the other hand, routine measures necessary to provide for unit security (e.g., warning private persons not to threaten or interfere with military operations) would not necessarily constitute measures to establish authority over enemy territory.
The substitution of authority by the Occupying Power may be shown by a proclamation
of occupation, although such a proclamation is not required.67
11.2.2.3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy
Territory. Occupation occurs when territory is actually placed under the authority of the hostile army. Thus, the existence of an occupation presupposes a hostile relationship between the invading force’s State and the State of the occupied territory, although the occupation need not be met with armed resistance. For example, the law of belligerent occupation would not apply to the use of military forces to control a State’s own territory, such as in cases of domestic emergency, insurrection, or non-international armed conflict.
Similarly, the law of belligerent occupation would not apply to the liberation of friendly
territory that was previously occupied by the enemy. The requirement of a hostile relationship between the invading force’s State and the State of the occupied territory also prevents the law of belligerent occupation from applying to postconflict situations (except for certain provisions of the GC).
Scope of Occupied Territory. The occupation extends only 11.2.3 to the territory where
such authority has been established and can be exercised.
For example, a State may remain in control of part of its territory while the remainder of
its territory is under occupation. The 1949 Geneva Conventions apply in cases of partial or total occupation of a State.
The end of occupation in one part of occupied territory does not end the occupation in
other parts of the occupied territory where the Occupying Power maintains its authority.
11.2.4 Proclamation of Occupation. Due to the special relations established between the
civilian population of the occupied territory and the Occupying Power, the fact of military
occupation and the territory over which it extends should be made known to the citizens of the occupied territory and to other States.
However, there is no specific legal requirement that the Occupying Power issue a
proclamation of military occupation. The question of whether territory is occupied does not depend upon the issuance of any particular proclamation or other instrument. Territory may be occupied even though no proclamation of occupation has been issued. Conversely, the issuance of proclamation of occupation does not empower a State with the rights of an Occupying Power if it does not
control such territory in fact. A proclamation may help fix the date of the beginning of the occupation. The proclamation may also advise inhabitants of occupied territory of the rules with which they must comply. In particular, the proclamation may be used to advise inhabitants of changes to law, including penal law. The general practice of the United States has been to make the fact of occupation known by proclamation or similar notice. In addition to giving notice to the inhabitants of occupied territory, notice may be given to other governments. In some cases, the U.N. Security Council has recognized the fact of occupation.