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Military occupation
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Belligerent military occupation occurs when the control and authority over a territory passes to a hostile army.
Art.
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Belligerent military occupation occurs when the control and authority over a territory passes to a hostile army.
Military occupation and the laws of war
There have long been customary laws of belligerent occupation as part of the laws of war which gave some protection to the population under the military occupation of a belligerent power. These were clarified and supplemented by the Hague Conventions of 1907. Specifically "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State." 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
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. 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. Subordination to China was reaffirmed in 1934. Chinese sovereignty was confirmed by both Beijing and the Tibetans 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 — occupied by Egypt in 1948 (except for four months of Israeli occupation during the 1956 Suez Crisis), occupied by Israel in 1967West Bank — captured by Jordan in 1948 Arab-Israeli War and annexed in 1950, captured by Israel in Six-Day War- 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 — annexed by Russia (which considers the matter non-negotiable)
Other
See also
Further reading
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
Footnotes
Original content adapted from the Wikinfo article, "wikinfo:Belligerent occupation"
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