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Chapter Seven 

Belligerent Occupation

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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 abridged versions of the same document on this site. Those abridged versions are noted after the first link as "abridged." They have been provided for the convenience of the reader interested in substantive versions of treaties but absent information regarding such matters as structure of secretariats and provisions for entry into effect. The text is color coded as follows:

Major Headings
Question Headings
Summaries of the law

    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 language version."


7.1 The Legal Status of

Occupied Territory


    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 occupation. 

    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).

    Belligerent 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 provisional.

    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.

The British 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).

See, http://www.britishconsulate.org/chancery/wbg.htm

Statement On Enforcement Of The Fourth Geneva Convention

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 Belligerent Occupation

bulletLegality of the war is irrelevant to effectiveness of the governing law
bulletLegality of conduct during occupation must be distinguished from legality of the occupation (jus ad bellum v. jus in bello).
bulletNeither occupation nor the law of war operate to transfer sovereignty over the territory occupied
bulletThe 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
bulletThe occupant has limited legislative powers and may not make permanent changes in fundamental institutions
bulletWhen possible the occupant must utilize already existing local laws
bulletPrivately owned war munitions may be seized without limit of occasion or quantity but subject to restoration and payment of compensation at war's end
bulletServices 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
bulletThe occupier may collect funds to pay for occupation and local administration
bulletPublic immovable property of a military character may be damaged or destroyed. The occupier acts as a usufruct of other public immovables
bulletPublic 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
bulletThe 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.



Questions About Status Of Occupied Territory


7.1.1 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 pp. 219-220:

It 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.

7.1.2 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.
7.1.3 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?
7.1.4 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 dictatorship?


7.2 Treatment Of The Populace


    Lauterpacht notes:

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 Germany:

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).

See, the 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 alia:

bulletRespect for human rights (Hague Article 46)
bulletA ban on mass deportations or transfers (Geneva Article 49)
bulletCare and education for children (Geneva Article 50)
bulletProvision of adequate food and medical supplies (Geneva Article 55)
bulletPublic health and hygiene (Geneva Article 56)
bulletReligious freedom (Geneva Article 58)

       On 2 November, 1998, Radislav Krstic was indicted 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, that:

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, pp.598-599.

Questions To Consider About Treatment Of The Populace


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?
7.2.2 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?
7.2.3 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


    The treatment 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. See, the Lieber 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 requires that:

    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. 

7.3.1 Private Property


    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 patrimony.


    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.

FM 27-10, ¶394(a).

    Consider the 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.

Nuremberg 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.


7.3.2 Public Property

    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.

    In 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 defendant...

   In a description of the United States' bombing of Hanoi in 1972, Joseph Kraft says:


I 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 Property


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 its use?
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 entity?  
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:

...generally , 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 made.

    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 dams 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.

    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 stated that:

...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 Cerri. See 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.

Nuremberg 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.

Nuremberg Trial Proceedings, Vol.6, Jan.22, 1946

Research Note: For online documentary information regarding U.S. planning and policy for the occupation see The Occupation Of Japan. For economic analysis records see Records 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:

     In 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 United States.

     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.

Questions To Consider About Administration

Of Occupied Territory


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:

bulletWhat acts can the occupier punish?
bulletWhat can’t or shouldn't it do?
bulletHow far may the occupier go to suppress dissent?
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 Jordanian territory.

7.4.3 What parts of the world are presently occupied by belligerents? Would you include:

bulletWest Bank?

Was Bosnia under belligerent occupation by Serbia? How does Israel square with the requirements? Consider U.N. General Assembly Resolution 52/65. Does it fairly state the law as it applies?

7.4.4 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 Sakhalin Island? If not, what about states created and territory obtained through the Treaty of Versailles following World War One.

7.4.5 Read the Directive 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.

    Is this means of government the most effective means of meeting the obligations imposed on the occupying power under Hague Regulation Article 43?  That Article provides:

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.

7.4.6 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?
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