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)

7.1 The Legal Status of

    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.

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).

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.

Synopsis Of Law Governing Belligerent Occupation

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.

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.

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.

"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. ***"

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.

Questions To Consider About Treatment Of Property

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).

    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.

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    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...

     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.

Questions 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:

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

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: