One might think that the history of military occupation goes back as long as the history of war itself, but the idea has only relatively recently gained significance.  In wars of yore, when soldiers took control over foreign lands and garrisoned in them, they were not occupying them, they were conquering them.  The strong ruled the weak, it made sense back then, and the idea that might might not make right is a novel concept in the history of mankind.  Especially to the conquerors.

We live in different times today, and conquest would no longer be a legitimate mean to acquire more territory.  It may still be a necessary element in such an acquisition, but conquest alone is no longer sufficient.

Territory is occupied when it is under the authority of a hostile army, and the occupation extends only to the territory where such authority is established and exercised.  That is the textbook definition according to the Hague Convention of 1907 (IV).  That and the Geneva Convention (IV) of 1949 are the main codes of international law on this subject.  From the viewpoint of humanitarian law, the central dogma is:
“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 [l'ordre et la vie publics], while respecting, unless absolutely prevented, the laws in force in the country.” (Hague Convention)

This is regardless whether the occupation is temporary or the occupant lays claim to the occupied territory.  Only when the question of rightful ownership have been resolved do the rules of the treaties no longer apply.

The occupying forces do not gain sovereignty over the occupied territory, and any attempt of annexation is invalid.  It is also prohibited to change the demographical composition of the occupied territory, whether it is by displacing the original inhabitants or by the construction of settlements inhabited by the citizens of the occupying state.

Further, the occupants may not change the constitution of the occupied territory unless this is obviously incompatible with the occupation, which translates to allowing a temporary suspension of the central political institutions of the occupied state.

Under no circumstances can the human rights of the occupied be suspended, and the penal code of the area may only be changed if it somehow endangers the occupying forces. Naturally, the occupying forces remain under their own military judicial system.

These rules are meant to protect the occupied from cruel and unusual laws imposed by the occupants, but in this regard it is clear that the two overriding objectives of the occupying forces is to secure (a) public order and safety, and (b) the human rights of the occupied, and any local law or institution of the occupied country that conflicts with these objectives should be considered void.

When forces gain the authority over the occupied territory it is readily apparent from the treaties that they also gain an immense responsibility for this territory, and failure to comply with their duty to uphold law and order is sanctionable.  While an actual enforcement of this is dubious as long as the occupying forces do their outmost to comply with the treaties, in the eyes of international law you break it, you own it!


Further reading:

  • Laws and Customs of War on Land (Hague IV)
    www.yale.edu/lawweb/avalon/lawofwar/hague04.htm
  • Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
    www.yale.edu/lawweb/avalon/lawofwar/geneva07.htm
(This is part of my personal quest (study) on international and humanitarian law)

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