Military occupation

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:^[10]

• those "who ... find themselves ... in the hands of a Party to the conflict or Occupying Power of which they are not nationals".^[11] 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^[12]

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.^[10]

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.^[15]

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

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.

Beginning of the occupation

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.^[16]

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. (pp. 25–26)

Effective control

The effective control of a territory by the occupying power mentioned in Article 42

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".^[18]

Examples of occupations

Some examples of military occupation came into existence as an outcome of World War I and World War II:

• Occupied Enemy Territory Administration (OETA), encompassing much of the Middle East during 1917–1920 – separated to French (OETA North) and British (OETA South) domains;
• Allied-occupied Germany (1945–49) in the aftermath of World War II

A number of post-1945 occupations have lasted more than 20 years, such as those of Namibia by South Africa, of East Timor by Indonesia, of Northern Cyprus by Turkey and of Western Sahara by Morocco.^[19] One of the world's longest ongoing occupations is Israel's occupation of the West Bank, including East Jerusalem and the Gaza Strip (1967–present), both Palestinian territories, along with the Syrian Golan Heights.^[20]

Other prolonged occupations that have been alleged include those of the

• Egyptian occupation of Gaza, 1949/59–1967^{[citation needed}
  ]
• Indian occupation of Goa, followed by its annexation (1961)^[22]
• Indonesian occupation of the West New Guinea, followed by its annexation (1963)^[23][24]
• Israeli occupation of the Western Golan Heights (1967–present)^[25]
• Turkish occupation of Northern Cyprus (1974–present)^[26]
• Somali occupation of Ogaden in Ethiopia (1977–1978)^{[citation needed]}
• Indonesian occupation of East Timor, followed by the annexation (1975–1999)
• Moroccan occupation of Western Sahara, followed most areas by its annexation (1975)^[27]
• 2020 war (1994–2020)^{[citation needed}
  ]

• Gash-Barka Region taken over in 2000 during the Eritrean–Ethiopian War^{[citation needed]}
• US during the Iraq War of 2003–2011 (See: Coalition Provisional Authority
  )
• Parts of Somalia occupied during the
  Somalia War (2006–2009)^{[citation needed}
  ]
• The
  Russian occupation of Georgia since 1992/2008^{[citation needed]} (See: Gori and Poti occupied by Russia during the Russo-Georgian War
  )
• Russian-occupied territories of Ukraine during the Russo-Ukrainian War (2014–present):
  • Occupation of parts of
    Russian military intervention in Ukraine, War in Donbas
    )
  • Occupations during the Russian invasion of Ukraine (2022–present):
    • Parts of
      partial annexation of occupied areas
    • Former partial occupations of Chernihiv, Dnipropetrovsk, Poltava, Kyiv, Sumy and Zhytomyr oblasts, as well as Snake Island, in early 2022 (See: Timeline of the Russian invasion of Ukraine (24 February – 7 April 2022), Snake Island campaign)
• Turkish occupation of northern Syria in support of the Syrian opposition since 2016^{[citation needed]}
• Yemeni Civil War^{[citation needed}
  ]

• Banana Wars
• Allied-occupied Germany
• Ex parte Milligan
• German-occupied Europe
• Intervention (international law)
• Interventionism (politics)
• Police action
• Rule of Law in Armed Conflicts Project
• List of countries with overseas military bases
• Lists of military installations
• List of military occupations

Notes

References

Further reading

• Simon Collard-Wexler. 2013. Understanding Resistance to Foreign Occupation. PhD thesis, Columbia University.
• 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.
  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
• Bellal, A. (editor). (2015) The war report: Armed conflict in 2014. United Kingdom: Oxford University Press.

External links

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• Occupation Studies Research Network - Interdisciplinary hub for the global community of scholars working on military occupation