Whoever conquors a free town and does not demolish it commits a great
error and may expect to be ruined himself.
Niccolo Machiavelli, The Prince (1513)
A Note To The Reader: This interactive text contains hyperlinks
both to complete copies of important document found at other sites and to
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noted after the first link as "abridged." They have been provided for
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A Note To The Law Of War
Student: Particularly relevant sections of underlying case readings are yellow
highlighted. The student is, however, expected to at least be familiar
with the entire reading. Where the case title is highlighted, as in Yamashita,
the student is expected to read carefully the entire case.
A Note to German Students:
To facilitate your understanding I have included German language texts of
treaties where available. The hyperlink will be identified by the words "German
7.1 The Legal Status
When territory is occupied by a belligerent questions arise not only as to
how the occupier may and must comport itself, and the rights and duties of
the inhabitants, but also as to the absolute legal status of the territory
and the people resident therein. This chapter deals with those questions. As
you read these materials, keep in mind the tension between the current legal
status of belligerent occupied territory under the U.N. Charter's stricture
against obtaining land by force, and the reality of the needs, rights and
duties of all parties in territory which is, in reality, under belligerent
Note the analysis in the case which follows for it includes the basis of
modern economic warfare. It seeks to prohibit "...acts that
will be or may be to the advantage of the enemy State by increasing its capacity
for prolonging hostilities in adding to the credit, money or goods, or other
resources available to individuals in the enemy State."
|If the enemy ... invades and
forcibly occupies territory outside his own boundaries, residence in
that territory may disqualify from bringing or maintaining suit in the
King's Courts .... The same applies to a company commercially domiciled
or controlled in occupied territory. But this is not always ...
so. It depends on the nature of the occupation .... If as a result of
the occupation the enemy is provisionally in effective control of an
area at the material time, and is exercising some kind of Government or
administration over it, the area acquires "enemy character";
... If, on the other hand, the occupation is of a slighter character,
for instance, if it is incidental to military occupation and does not
result in effective control, the case is different,.... In the present
case, the occupation of Holland by Germany is plainly, as things stand,
of the more absolute kind.
N.V. Gebr. Van Uden's Scheepvaart en Agentuur
Maatschappii v. V/O Souvracht, House of Lords (1942).
occupation in a foreign war, being based upon the possession of enemy
territory, necessarily implies that the sovereignty of the occupied
territory is not vested in the occupying power. Occupation is essentially
On the other
hand, subjugation or conquest implies a transfer of sovereignty, which
generally takes the form of annexation and is normally effected by a treaty
of peace. When sovereignty passes, belligerent occupation, as such, of
course ceases, although the territory may and usually does, for a period at
least, continue to be governed by military agencies.
FM 27-10 at ¶353.
Statement Of The U.K. Regarding Occupied Territories
The Occupied Territories comprise
the West Bank (of the River Jordan), the Gaza Strip and East Jerusalem. Israel
occupied these in the 1967 war. Israeli civil law was immediately extended to
East Jerusalem, the area of which was expanded from 6 sq.km. to 72 sq.km. by
unilaterally extending the municipal boundaries into the West Bank. Israel has
claimed Jerusalem as its "eternal and undivided" capital since then.
Israel formally annexed East Jerusalem in 1980.
Government, like other EU partners, does not recognise the annexation of East
Jerusalem. We consider these territories to be under occupation and that Israel
is obliged to administer them under the terms of the Fourth Geneva Convention,
which prohibits forcible deportations, detention without trial, destruction of
property, denial of access to food, health and education, and settlement by the
occupying power of its own civilians in occupied territory.
Israel refuses to acknowledge the
Convention's de jure application to any of the Occupied Territories.
Israel has, however, said it will comply de facto with the Convention's
humanitarian provisions in administering the West Bank and Gaza (but the
applicable provisions have never been specified).
Statement On Enforcement Of The Fourth Geneva
|In February 1999, the UN General
Assembly's Tenth Emergency Special Session recommended that the High Contracting
Parties to the Fourth Geneva [Civilian] Convention meet in Geneva on July 15 to
discuss enforcement of the Convention with regard to Israeli settlement
activities. The U.S. voted against this resolution. We have worked strenuously
in the days since its adoption -- up to and including today -- to cancel or
delay this ill-conceived conference. We strongly oppose convening this
conference on legal and policy grounds. We have conveyed these objections to a
number of other governments at the highest levels. President Clinton has raised
this issue personally with the presidents of Switzerland and France. Secretary
Albright has had a number of conversations with her counterpart ministers to
underscore the approaches we have made in capitals and with other UN
delegations. We have also addressed this issue with senior Palestinian and other
Arab leaders. We informed Switzerland (in its role as depositary of the
Convention) and others that the U.S. would not attend the conference. Australia
did likewise. Other countries have expressed their concerns about convening the
conference so soon after the formation of the new Israeli government. We
continue to believe that convening the conference is a very serious mistake.
In addition to our concern about
its negative impact on the peace process, we have serious legal concerns that
have not been adequately addressed. The Fourth Geneva Convention contains no
provision for an enforcement meeting of the High Contracting Parties. Nor do any
of the other treaties of this regime contemplate such an enforcement mechanism.
The Convention does contain
provisions to address questions of enforcement (e.g., Article 12 conciliation
procedure, Article 149 enquiry procedure), but these do not entail highly public
meetings of the High Contracting Parties. The idea of permitting meetings of the
High Contracting Parties to address specific questions of application of these
rules was raised (by the Arab group) and rejected during the negotiations
leading to the adoption of Protocol I Additional of 1977 to the 1949 Geneva
Conventions. The negotiating record demonstrates clearly that the High
Contracting Parties discussed and rejected precisely this sort of conference.
C. David Welch, Assistant Secretary for International Organization Affairs, U.S. Department of State, Testimony Before the House International Relations
Committee, Washington, DC, July 14, 1999
United Nations General Assembly Resolution 799
|2. Reaffirms the applicability of the Fourth Geneva Convention of 12 August
1949 to all the Palestinian territories occupied by Israel since 1967, including
Jerusalem, and affirms that deportation of civilians constitutes a contravention
of its obligations under the Convention
December 18, 1992
Synopsis Of Law Governing
|Legality of the war is irrelevant to
effectiveness of the governing law|
|Legality of conduct during occupation must
be distinguished from legality of the occupation (jus ad bellum v.
jus in bello).|
|Neither occupation nor the law of war
operate to transfer sovereignty over the territory occupied|
|The occupant must continue orderly
government and may exercise control over and utilize the resources
of the country for that purpose and to meet his own military needs|
|The occupant has limited legislative powers
and may not make permanent changes in fundamental institutions|
|When possible the occupant must utilize
already existing local laws|
|Privately owned war munitions may be seized
without limit of occasion or quantity but subject to restoration and
payment of compensation at war's end|
|Services may be requisitioned but workers
cannot be forced to operate against their country, and are limited
to providing local needs. They cannot be used for the general
benefit of the occupier's homeland|
|The occupier may collect funds to pay for
occupation and local administration|
|Public immovable property of a military
character may be damaged or destroyed. The occupier acts as a
usufruct of other public immovables|
|Public movable property subject to military
uses (e.g. war munitions, transport) may be seized without
compensation. Other public movables such as art and objects of
national patrimony are treated as private property|
|The occupier may collect state debts but
need not pay debts owed by the prior state. Any interference with
currency must be justified by good economic order of the territory|
Sources, Stone, Oppenheim, FM 27-10, British
Manual Part III, Hague Convention IV, 1907, Articles 46-56, Geneva
Civilians Convention, 1949, Protocol I to Geneva Conventions.
About Status Of Occupied Territory
Since 1945, can subjugation or conquest effect a change in the legal
status of territory? What about East Prussia? East Poland? How
do they differ from the Baltic States? Are those areas
belligerently occupied? Can a treaty or agreement obtained by force ever be enforceable
against the coerced party? Compare the doctrine of duress in common law.
Hint: See, Hersch Lauterpacht, Oppenheim's International Law (7th Ed. 1952) Vol. II at
follows also that a peace treaty imposed by the victorious aggressor has no
legal validity, notwithstanding the rule that International law disregards the
vitiating effects of duress. For the latter rule applies only to wars
which are not prohibited by International Law.
See also, Vienna
Convention on the Law of Treaties Article 51.
If the Security Council determines that occupation of territory is
illegal, what is the legal status of corporate assets owned by an
occupant of the territory? Is a freeze of those assets justified if it
effectively destroys a company which is, through no fault of its own, a
victim of the aggressor state? Is an alternative regime possible?
Construct a system through which the goal of harming the aggressor could
be effected without destroying the corporate victim.
In the U.K. Statement the British government notes that Israel "...
refuses to acknowledge the Convention's de jure application to any of the Occupied Territories.
Israel has, however, said it will comply de facto with the Convention's
humanitarian provisions..." Is there any analogy to be drawn between the
Israeli position and that of the U.S. regarding persons held as "enemy
combatants" at Guantanamo Bay, Cuba?
If, the occupant has limited legislative powers
and may not make permanent changes in fundamental institutions, is
the current government of Iraq lawful? What about the right of the people
of Iraq to self-determination? Could they be forced to restore a
7.2 Treatment Of The Populace
|Most of the accused
in the trial of major German War criminals before the International Military
Tribunal at Nuremberg in 1946 and 1946 were sentenced for war crimes connected
with the law of military occupation. The same applies to a large number of war
crime trials held by national military tribunals and special courts.
Hersch Lauterpacht, Oppenheim's International Law, (7th Ed.
1952) §172(a) at pp.451-452.
At the Nuremberg trials following the
German surrender, the court considered the then existing laws governing use
of force by an occupier:
|What was the
duty of [the German military commander]? We think his duty was plain. He was
authorized to pacify the country with military force; he was entitled to punish
those who attacked his troops or sabotaged his transportation and communications
lines as francs-tireurs [that is, effectively, as terrorists]; he was entitled
to take precautions against those suspected of participation in the resistance
movement, such as registration, limitation of movement, curfew regulations and
other measures...As a last resort hostages and reprisal prisoners may be shot in
accordance with international custom and practice.
The List Trial Opinion, XI Trials Of War Criminals Before The
Nuremberg Military Tribunals, p.1273.
Recall United States Army's draft plans for the occupation of
|The taking of
hostages is a further means of enforcing obedience to the terms of Surrender or
compliance with the laws of War. It will in no case be resorted to without the
prior authority of the Supreme Commander. The execution of hostages is not
regarded with favor and will never be carried out in the absence of authority
of the Supreme Commander.
See, Measures Which May Be Taken To Enforce The Terms Of
Surrender Or In The Event Of No Surrender To Compel The Enemy To Comply With The
Laws Of War, supra at Chapter 2.
Compare that plan, with the occupation of the Philippines
by the United States following the war with Spain in 1898. In First Great
Triumph, Warren Zimmerman describes one aspect of the occupation of the island
of Luzon under General Adna Chaffee:
|He authorized General J.
Franklin Bell to carry out a murderous sweep of Batangas Province in
southwestern Luzon. Acting under orders he had written himself, Bell
ordered the execution of prisoners by lot in retaliation for
assassinations. He punished priests, local officials and community leaders
for refusing to provide information. He told his men that the innocent
must invariably suffer with the guilty and encouraged young officers to
act without restraint or senior review. Taking MacArthur's protected zones
approach to its limit, Bell forced villagers into camps, then destroyed
what was outside: crops, animals, houses, even human beings.
Warren Zimmerman, First Great Triumph at 408, Farrar Straus and Giroux (New York, 2002).
Diary of George Scriven for a first hand account of this conduct.
Such measures, while they were in some
circumstances unquestionably legal under prevailing norms represented by Hague
Convention IV, lent themselves to abuse. The 1949
Geneva Civilians Convention contains a number of provisions designed to
ameliorate the lot of the populace in occupied territories. They govern, inter
|Respect for human rights (Hague Article 46)|
|A ban on mass deportations or transfers (Geneva Article 49)|
|Care and education for children (Geneva Article 50)|
|Provision of adequate food and medical supplies (Geneva Article 55)|
|Public health and hygiene (Geneva Article 56)|
|Religious freedom (Geneva Article 58)|
On 2 November, 1998, Radislav Krstic was
by the International criminal Tribunal for Former Yugoslavia for genocide,
extermination, murder and persecution against civilians near Srebernica, Bosnia
in 1995. Krstic, a General in the Bosnian Serb forces is currently being
prosecuted for the unlawful killing of approximately 7,000 Muslim men during
that time period. His defense is that the 15,000 man Drina Corps, of which he
was chief of staff and deputy commander, was not involved in the killings.
Lauterpacht tells us in Oppenheim, International Law,
|Since in the case of termination of
war through simple cessation of hostilities, no treaty of peace embodies the
conditions of peace between the former belligerents, the question arises whether
the status which existed between the parties before the outbreak of war...should
be revived, of the status which exists between the parties at the time they
simply ceased hostilities...can be upheld. The majority of writers correctly
maintain that the status which exists at the time of cessation of hostilities
becomes the basis of the future relations of the parties. This question is one
of the greatest importance, regarding enemy territory militarily occupied by a
belligerent at the time hostilities cease. According to the correct opinion it
can be annexed by the occupier, on the ground that his adversary, through the
cessation of hostilities, has abandoned all rights he possessed over it.
Hersch Lauterpacht, Oppenheim's International Law (7th Ed. 1952) Vol.2 §263,
Questions To Consider About Treatment Of
|7.2.1 Why do we care about
belligerent occupation? What territories are currently considered by the U.N. to
be under belligerent occupation? How does that doctrine differ from
colonialization? Are the rules governing occupier and occupied different than
those affecting a colonial power and the indigenous population?
Does it matter how land is obtained if not by free consent? Was
the Sudatenland of Czechloslovakia occupied territory if Britain and France gave
it away without direct coercion? Was the law different then than it is now? Why
did it change?
Consider the rights of the population in occupied territories under the Geneva
Civilians Convention. They include adequate food and medical supplies. May such
supplies be lawfully withheld from a civilian populace under a blockade or
quarantine designed to prevent or rectify international aggression? Apply your
answer to the current sanctions against Iraq.
7.3 Treatment Of Property
by the occupier of real and personal property is analyzed under a number of
factors including the nature of the property, the needs of the occupier and
whether it is owned by the State or a private person. It is presumed the student
has fundamental knowledge of the distinctions between types of property such as
movable and immoveables. The 19th century saw a rejection of the concepts of
private war, looting and pillage which had characterized previous conflicts.
Code at Articles 31-47. The rules now in effect largely spring from
the norms existent when the Hague conventions were drafted, with a strong
emphasis on private property rights. That respect for property is found in both
the Hague Regulations and Convention
IV Relative To The Protection Of Civilian Persons In Time Of War.
Hague Regulation Article 23, provides in part that:
|It is especially forbidden...to
destroy or seize the enemy's property unless such destruction or seizure be
imperatively demanded by the necessities of war.
Similarly, Article 53 of the Geneva Civilians Convention
| Any destruction
by the Occupying Power of real or personal property belonging individually or
collectively to private persons, or to the State, or to other public
authorities, or to social or cooperative organizations, is prohibited, except
where such destruction is rendered absolutely necessary by military operations.
The spectrum of
property subject to use by an occupant, and the uses to which it may be put, is
as varied as the sweep of modern war. Because the economic analyses of the late
19th century were found insufficient for dealing with totalitarian economic
warfare, the immediate post-World War II era saw the entry into force of a
number of treaties covering both state and individual assets, and cultural
Under modern conditions, the distinction between public and private property is
not always easy to draw. For the purpose of treatment of property under
belligerent occupation, it is often necessary to look beyond strict legal title
and to ascertain the character of the property on the basis of the beneficial
ownership thereof. Thus, for example, trust funds, pension funds, and bank
deposits generated by private persons are not to be regarded as public property
simply by reason of their being held by a State owned bank.
Singapore Oil Stocks Case (N.V. de Batafsche Petroleum Maatschappij and
Others v. The War Damage Commission) (Singapore Court of Appeal, 1956) 23
I.L.R. 310 (1957) 51 A.J.I.L. 802. The case arose following the Second World War
when claims were made by Dutch prior owners against British authorities
for the wartime seizure as war booty of oil produced and used for civilian and
military purposes by Japanese occupation authorities. The Dutch claims were
dismissed but in a split decision an appeal was allowed.
The majority opinion noted the testimony of Japanese witnesses, including
Admiral Wanatabe, who stated that oil facilities in Sumatra were seized because
"oil was the most vital war material at that time, and personally, I
thought we started the war for the sake of oil." The Court agreed, finding
that the seizure of Dutch oil installations was "part of a larger plan
prepared by the Japanese State to secure the oil resources of the Netherlands
Indies, not merely for the purpose of meeting the requirements of an army of
occupation, but for the purpose of supplying the naval, military and civilian
needs of Japan." A.J.I.L., ibid. at 803.
The Nuremberg Tribunal discussed another aspect of Axis seizures of private
property; the art and cultural treasures of the Jewish communities which fell
under German occupation:
On 29 January 1940 Hitler issued a
decree in the following terms:
"The 'Hohe Schule' is supposed
to become the center for national-socialistic ideological and educational
research. It will be established after the conclusion of the war. I order that
the already initiated preparations be continued by Reichsleiter Alfred
Rosenberg, especially in the way of research and the setting up of the library.
"All sections of Party and
State are requested to cooperate with him in this task." (136-PS)
What began as a project for the
establishment of a research library developed into a project for the seizure of
cultural treasures. (141-PS)
On 1 March 1942 Hitler issued a
decree in which he asserted that Jews, Freemasons, and affiliated opponents of
National Socialism are the authors of the War against the Reich, and that a
systematic spiritual battle against them is a military necessity. The decree
thereupon authorized Rosenberg to search libraries, archives, lodges, and
cultural establishments, to seize relevant material from these establishments as
well as cultural treasures which were the property or in the possession of Jews,
which were ownerless, or the origin of which could not be clearly established.
The decree directed the cooperation of the Wehrmacht High Command and indicated
that Rosenberg's activities in the West were to be conducted in his capacity as
Reichsleiter and in the East in his capacity as Reichsminister.
Judgment at Vol.I, p.1097.
"The goods are dispatched
first, to large collecting camps from where they are turned over, sorted out and
loaded for Germany.
"*** work shops were
established for cabinet-makers, watchmakers, shoemakers, electricians, radio
experts, furriers, etc. All incoming goods were diligently sorted out and those
not ready for use were repaired. Moreover special boxes were dispatched for the
use of special trades *** "For the sorting out of the confiscated furniture
and goods on the invisible assembly line and for the packing and loading,
exclusive use was made of interned Jews. Because of its experience as to
confiscation, as to working systems within the camps, and as to transportation,
the Office West was able to reorganize their entire working system and thus to
succeed in providing for the use in Germany of even things, which appeared to be
valueless such as scrap paper, rags, salvage, etc. ***"
Ibid at 1101.
Hague Regulation Article 53 gives primary
guidance for the occupier which attempts to lawfully seize property of use
either to itself during occupation or to potential enemies. It requires that:
An army of occupation can only take possession of cash, funds, and
realizable securities which are strictly the property of the State, depots of
arms, means of transport, stores and supplies, and, generally, all movable
property belonging to the State which may be used for military operations.
All appliances, whether on land, at sea, or in the air, adapted for the
transmission of news, or for the transport of persons or things, exclusive of
cases governed by naval law, depots of arms, and, generally, all kinds of
munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.
Lauterpacht includes within Article 53
property "which is of a military character, such as strong points,
arsenals, dockyards, magazines, barracks and stores, as well as railways,
canals, bridges, piers and wharves, airfields and their installations... "
British Manual of Military Law, Part III, ¶608 at p. 169.
Article 55 of
the Hague Regulations provides that the occupier is the administrator and usufruct
of buildings, land, forests, and other real property of the enemy state.
Taken together, those articles provide certain minimal standards of conduct.
Compare them with the actions discussed below.
the German High Command Case at Nuremberg, 12 W.C.R. at 93, the tribunal
allowed a military necessity defense for measures of extensive destruction of
property in Russia by retreating German forces. The tribunal, found that while
the action was not actually necessary:
|Defendants ... were in many
instances in retreat under arduous conditions wherein their commands were in
serious danger of being cut off. Under such circumstances, a commander
must necessarily make quick decisions to meet the particular circumstances of
his command. A great deal of latitude must be accorded to him under such
circumstances. What constitutes devastation beyond military necessity in these
situations requires detailed proof of an operational and tactical nature. We do
not feel that in this case the proof is ample to establish the guilt of any
In a description of the United States' bombing
of Hanoi in 1972, Joseph Kraft says:
saw two spots where American bombs had seriously damaged the network of dikes
that prevents the Red River from flooding in the rainy season...The hits were
probably accidental since both sites were close to more likely targets--roads
and a railroad. But they did take place [and given the number of dikes and
amount of bombing] they were bound to take place.
Joseph Kraft, Letter From Hanoi,
The New Yorker, 12 August, 1972 at p.58.
Questions To Consider About Treatment Of
7.3.1 Why do the private property laws of the
occupied territory continue in effect? Is there a conceptual difference between
private and public property such that puplic property is more fairly subject to
use by the occupier? What about occupied territory from a state in which all
property is owned by the people? May an occupier take anything without regard to
7.3.2 Familiarize yourself with the concept of a
usufruct (Hint: it is similar to a tenancy for a term in common law). While an
occupier may ordinarily work mines in a "normal" fashion without
unduly exploiting them, is there any material which is so vital to war making
that it may be treated in a special fashion? Consider uranium ore, the materials
used for making steel, or crude oil in the ground. Should a special rule be
fashioned dealing with such goods? Make the arguments for and against that rule.
See, Evan Wallach, The Use Of Crude Oil By An Occupying State As A Munition De
Guerre, 41 International And Comparative Law Quarterly 287 (1992).
7.3.3 What is the status of PLO controlled
territory turned over during the peace process? Is it still Jordanian
territory? Who's property laws apply? Can Israel transfer it to a separate
7.3.4 Israel has in the past, followed a policy
in occupied territory, of bulldozing the homes of families of individuals who
attacked Israeli targets. How does that policy comport with Article 53 of the
Geneva Civilians Convention? Note that under Article 33, "Reprisals against
protected persons and their property are prohibited."
7.3.5 Was there any justification for seizure by
the Japanese of Dutch crude oil for purposes beyond the use of the occupation
force? Consider the war munitions doctrine found in FM 27.10 at ¶403:
, all kinds of ammunition of war may be seized, even if [it] belong[s] to
private individuals, but must be restored and compensation fixed when peace is
Greenspan, however, says, the
occupant may take absolute possession of such property as booty of war. Morris Greenspan, The Modern Law of Land Warfare
University of California Press (Berkeley, 1959) at pp. 290-291. See
generally, Evan Wallach, The Use Of Crude Oil By An Occupying Belligerent States
As A Munition de Guerre, 41 I.C.L.Q. 287 (1992).
7.3.6 What amount and type of proof would be
necessity to convict a defendant of unlawful devastation under the standard
enunciated in the German High Command Case?
7.3.7 If the Red River controlled by the dikes
described by Kraft above, was used for transportation of military goods, were
the dikes a legitimate target? What if the resulting flooding would destroy the
military transport infrastructure (i.e. flooding roads and railroads)? In
formulating your answer, consider the bombing by the Royal Air Force of the
Möhne, Eder and Sorpe
on the Ruhr River in May, 1943, and the resulting civilian casualties.
7.4 Right To Administer Occupied Territory
As long as an occupation is effective, the
various branches of government on every level are subject to either dissolution
or administration and control by an occupying armed force. While an occupant may
use civil servants of the occupied territory as administrators, it is under no
obligation to do so, and it may instead choose to substitute a direct form of
Military government is the form of administration by which an occupying power
exercises governmental authority over occupied territory. The necessity for such
government arises from the failure or inability of the legitimate government to
exercise its functions on account of the military occupation, or the
undesirability of allowing it to do so.
Military and civilian personnel of the occupying forces and occupation
administration and persons accompanying them are not subject to the local law or
to the jurisdiction of the local courts of the occupied territory unless
expressly made subject thereto by a competent officer...The occupant should see
to it that an appropriate system of substantive law applies to such persons...
FM 27-10 at ¶ ¶ 362 and 374.
In 1945, General Eisenhower, the Supreme
Allied Commander was given directions
by the Combined joint Chiefs of Staff regarding his legal rights and obligations
as part of the Allied Control Council, for the occupation of Germany. They
|...you are, by virtue of your position, clothed with supreme legislative,
executive, and judicial authority in the areas occupied by forces under your
command. This authority will be broadly construed and includes authority to take
all measures deemed by you necessary, appropriate or desirable in relation to
military exigencies and the objectives of a firm military government.
See E. Fraenkel, Military Occupation and the Rule of Law (1944); C. J.
Friedrich, ed., American Experiences in Military Government in World War II
(1948); and D. A. Graber, Development of the Law of Military Occupation,
1863–1914 (1948, repr. 1969).
Following the surrender of the French armed forces in
1940, the Germans occupied part of the country but left a substantial portion
unoccupied but subject to German control. That unoccupied portion, with its seat
of government in Vichy, became known as "Vichy
France." The Vichy authorities, while (under the armistice
terms) not under occupation maintained a policy of collaboration
with the Germans. While much of that cooperation involved anti-Semitic
policies and activities, (see also, Adolf
Eichman Judgment), "[t]he German occupation in France was focused on
economic exploitation ..." Alain
Philippe Burrin, France Under the Germans : Collaboration and Compromise,
The New Press, 1997 and John F. Sweets, Choices in Vichy France, Oxford University Press, 1986).
|Careful plans were made in advance
of the invasion in 1940 to secure for Germany the raw material resources of the
to- be occupied countries. A manual of directives and decrees issued by the
Quartermaster, OKH, for the economic administration of the military government
set forth an exhaustive list of important raw materials to be seized wherever
found (EC-155). Directives were issued to the so- called economic squads (Wirtschafts
Truppe) attached to the tactical units on the procedures to be followed in
locating, seizing, and preparing such materials for shipment to Germany. Also
included in the manual mentioned were drafts of decrees to be promulgated by the
German occupation authorities, for the establishment in the occupied countries
of Goods Offices, modeled after the German rationing boards, to control
production and distribution in the occupied countries in the German interest.
Judgment, Vol. 1, p.1052.
The German legal position regarding its economic
exploitation rights in occupied territory was set out in a Memorandum quoted in
the Nuremberg case against Admiral Raeder:
|The legal basis for the requisition
of these machines was the Hague
Convention of 1907, Articles
52 and 53. The formulation of the Hague
Convention which provides for requisitions only for the benefit and the
needs of the occupying power, applied to the circumstances of the year 1907,
that is, to a time when war actions were confined within narrowly restricted
areas and practically the military front alone was involved in war operations.
In view of such space restrictions for war, it was evident that the provisions
of the Hague
Convention, stipulating that requisitions be made solely for the needs of
the occupying power, were sufficient for the conduct of operations. Modern war,
however, which by its expansion to total war is no longer bound by space but has
developed into a general struggle of peoples and economies, requires that while
the regulations of the Hague
Convention should be maintained, there should be a sensible interpretation
of its principles adapted to the demands of modern warfare." I pass to the
end of this quotation: "Whenever, in requisitioning, reference was made to
the ordinance of the military commander of 6 August 1942, this was done in order
to give the Belgian population the necessary interpretation of the meaning of
the principle of the requisition regulations of the Hague Convention.
Trial Proceedings, Vol.6, Jan.22, 1946.
Research Note: For online documentary information regarding U.S. planning and
policy for the occupation see
Occupation Of Japan. For economic analysis records see
Of Foreign Economic Administration.
What then are the legal effects of legislation passed by
what is later determined to have been an illegal government, yet one in
effective control of the territory in question. An early discussion may be found
in a Texas v. White, a United States Supreme Court case dealing with the
validity of laws enacted in Texas during the American Civil war:
this case, however, it is said, that the restriction imposed by the act
of 1851 was repealed by the act of 1862. And this is true if the act of
1862 can be regarded as valid. But, was it valid?
The legislature of Texas, at the time of the
repeal, constituted one of the departments of a State government,
established in hostility to the Constitution of the United States. It
cannot be regarded, therefore, in the courts of the United States, as a
lawful legislature, or its acts as lawful acts. And, yet, it is an
historical fact that the government of Texas, then in full control of
the State, was its only actual government; and certainly if Texas had
been a separate State, and not one of the United States, the new
government, having displaced the regular authority, and having
established itself in the customary seats of power, and in the exercise
of the ordinary functions of administration, would have constituted, in
the strictest sense of the words, a de facto government, and its acts,
during the period of its existence as such, would be effectual, and, in
almost all respects, valid. And, to some extent, this is true of the
actual government of Texas, though unlawful and revolutionary, as to the
It is not necessary to attempt any exact
definitions, within which the acts of such a State government must be
treated as valid, or invalid. It may be said, perhaps with sufficient
accuracy, that acts necessary to peace and good order among citizens,
such for example, as acts sanctioning and protecting marriage and the
domestic relations, governing the course of descents, regulating the
conveyance and transfer of property, real and personal, and providing
remedies for injuries to person and estate, and other similar acts,
which would be valid if emanating from a lawful government, must be
regarded in general as valid when proceeding from an actual, though
unlawful government; and that acts in furtherance or support of
rebellion against the United States, or intended to defeat the just
rights of citizens, and other acts of like nature, must, in general, be
regarded as invalid and void.
Texas v. White, 19 L.Ed. 227, 7 Wall. 700,733 (1868).
For information on the latest example of occupation, see,
the website for the Coalition
Provisional Authority in Iraq.
To Consider About Administration
7.4.1 An occupier has certain
administrative rights in occupied territory, but why
should it be able to administer? See, Hague IV
Articles 43-56 . Consider the necessity of some form of government to
deal with the problems of any population, especially one which after a war may
contain many refugees in an environment hardly conducive to health or
well-being. If you conclude that some form of administration by the occupier is
necessary, than also consider:
|What acts can the occupier punish?|
|What can’t or shouldn't it do?|
|How far may the occupier go to suppress
|7.4.2 Does an occupying force have the legal
right to use force to suppress a mass uprising even if it has no lawful right to
permanent occupation of the territory? Compare the Allied occupation of Germany
and Japan with the current Israeli occupation of portions of what was formerly
7.4.3 What parts of the world are presently
occupied by belligerents? Would you include:
Was Bosnia under belligerent occupation by
Serbia? How does Israel square with the
requirements? Consider U.N. General Assembly
52/65. Does it fairly state the law as it applies?
In 1945, following the atomic bombing of Japan, the U.S.S.R. occupied certain
islands north of Japan. That occupation has continued for over fifty years with
Russia as the successor state following the collapse of the U.S.S.R. Has that
lapse of time made legal the occupation of
Island? If not, what about states created and territory obtained through the
Treaty of Versailles
following World War One.
7.4.5 Read the
to General Eisenhower. It includes instructions that:
In the imposition and maintenance of such controls as may be prescribed by you
or the Control Council, German authorities will to the fullest extent
practicable be ordered to proclaim and assume administration of such controls.
Thus it should be brought home to the German people that the responsibility for
the administration of such controls and for any break-downs in those controls
will rest with themselves and German authorities.
means of government the most effective means of meeting the obligations imposed
on the occupying power under Hague Regulation Article 43? That Article
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.
How should the United States and the new Government of Afghanistan treat
prior administrative acts of the Taliban regime? Were marriages performed
under its control valid? Were land transfers? How does one decide the
issue in a principled fashion?|