XI - Military Occupation

11.1 MILITARY OCCUPATION - INTRODUCTION
Military occupation is a temporary measure for administering territory under the control of invading forces, and involves a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory.

The law of belligerent occupation seeks to account for both military and humanitarian imperatives. The Occupying Power’s primary objective in conducting military occupation is to further the purpose of the war in which the occupying forces are engaged and to ensure the maintenance and security of those forces, but the Occupying Power is also bound to provide for the interests and welfare of the civilian population of the occupied territory. The Occupying Power has obligations related to the maintenance of public order and safety, and the protection of civilians and property in occupied territory.

11.2.2 Standard for Determining When Territory Is Considered Occupied.
Territory is considered occupied when it is actually placed under the authority of the hostile forces.
This standard for when the law of belligerent occupation applies is reflected in Article 42 of The Hague IV Regulations and is regarded as customary international law.

11.2.2.1 “Actually Placed” – Effectiveness of Occupation.
Military occupation must be actual and effective; that is, the organized resistance must have been overcome, and the Occupying Power must have taken measures to establish its authority.

It is sufficient that the occupying force can, within a reasonable time, send detachments of forces to enforce its authority within the occupied district. Military occupation does not require the presence of military forces in every populated area, although the occupying force must, inter alia, control the most important places.

The type of forces used to maintain the authority of the Occupying Power is not material. For example, the occupation might be maintained by permanently based units or mobile forces, either of which would be able to send detachments of forces to enforce the authority of the Occupying Power within the occupied district. However, air superiority alone would not constitute an effective occupation.

Similarly, as long as the occupation is effective, there is no precise number of forces that are considered necessary to constitute an effective occupation. The number of forces necessary to maintain effective occupation will depend on various considerations, such as the disposition of the inhabitants, the number and density of the population, the nature of the terrain, and similar factors.

11.2.2.2 “Under the Authority” – Suspension and Substitution of Governmental Authority.

Occupation also requires the suspension of the territorial State’s authority and the substitution of the Occupying Power’s authority for the territorial State’s authority.

The territorial State must be rendered incapable of publicly exercising its authority in the territory, and the Occupying Power must substitute its authority for that of the territorial State. Invading forces in possession of the territory must have taken measures to establish their authority. For example, such measures may include establishing its own governmental authority for that area and making regulations for the conduct of temporary government. The suspension and substitution of authority may take place with local authorities continuing to administer territory subject to the paramount authority of the Occupying Power. On the other hand, routine measures necessary to provide for unit security (e.g., warning private persons not to threaten or interfere with military operations) would not necessarily constitute measures to establish authority over enemy territory.

The substitution of authority by the Occupying Power may be shown by a proclamation of occupation, although such a proclamation is not required.

11.2.2.3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory.
Occupation occurs when territory is actually placed under the authority of the hostile army. Thus, the existence of an occupation presupposes a hostile relationship between the invading force’s State and the State of the occupied territory, although the occupation need not be met with armed resistance.

For example, the law of belligerent occupation would not apply to the use of military forces to control a State’s own territory, such as in cases of domestic emergency, insurrection, or non-international armed conflict.

Similarly, the law of belligerent occupation would not apply to the liberation of friendly territory that was previously occupied by the enemy.

The requirement of a hostile relationship between the invading force’s State and the State of the occupied territory also prevents the law of belligerent occupation from applying to post- conflict situations (except for certain provisions of the GC).

11.2.4 Proclamation of Occupation.
Due to the special relations established between the civilian population of the occupied territory and the Occupying Power, the fact of military occupation and the territory over which it extends should be made known to the citizens of the occupied territory and to other States.

However, there is no specific legal requirement that the Occupying Power issue a proclamation of military occupation.

The question of whether territory is occupied does not depend upon the issuance of any particular proclamation or other instrument. Territory may be occupied even though no proclamation of occupation has been issued. Conversely, the issuance of proclamation of occupation does not empower a State with the rights of an Occupying Power if it does not control such territory in fact.

11.4.2 Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty Over Occupied Territory.
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.

Because sovereignty is not vested in the Occupying Power, the fact of military occupation does not authorize the Occupying Power to take certain actions. For example, the Occupying Power is not authorized by the fact of belligerent occupation to annex occupied territory or to create a new State. In addition, the Occupying Power may not compel the inhabitants of occupied territory to become its nationals or otherwise to swear allegiance to it. Similarly, in view of the provisional nature of belligerent occupation, the authority of the Occupying Power under occupation law has been interpreted as being subject to limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.

11.5.2 Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country.
The duty to respect, unless absolutely prevented, the laws in force in the country prohibits the Occupying Power from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory. The duty to respect, unless absolutely prevented, the laws in force in the country has been interpreted not to apply to local administrative laws, such as regulations, executive orders, ordinances, and decrees.

11.7.1 Inhabitants’ Obedience to the Occupying Power.
It is the duty of the inhabitants to carry on their ordinary peaceful pursuits, to behave in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrain from all injurious acts toward the forces or in respect to their operations, and to render strict obedience to the orders of the occupant.

Subject to the restrictions imposed by international law, the Occupying Power may demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for the security of its forces, for the maintenance of law and order, and for the proper administration of the country.

The inhabitant’s obedience to the Occupying Power is generally distinguished from a duty of allegiance. The inhabitant’s duty of allegiance to his or her State of nationality is not severed. The inhabitants, however, are not bound to obey their State of nationality.

11.7.2 Censorship and Other Regulation of the Media.
Under the law of belligerent occupation, for the purposes of security, an Occupying Power may establish censorship or regulation of any or all forms of media (e.g., press, radio, television) and entertainment (e.g., theater, movies), of correspondence, and of other means of communication. For example, an Occupying Power may prohibit entirely the publication of newspapers that pose a threat to security, or it may prescribe regulations for the publication or circulation of newspapers or of other media for the purpose of fulfilling its obligations to restore public order.

11.8.1 Paramount Authority of the Occupying Power Over Government Functions in Occupied Territory.
The functions of the hostile government—whether of a general, provincial, or local character—continue only to the extent they are sanctioned by the Occupying Power.

11.8.5 Immunity of Occupation Personnel From Local Law.
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 civil or criminal courts of the occupied territory, unless expressly made subject thereto by a competent officer of the Occupying Power.

11.9.1 General Continuation of Municipal Law of the Occupied Territory as Between Inhabitants.
In general, the municipal law of the occupied territory (i.e., the ordinary domestic civil and criminal law) and their administration remain in full force so far as the inhabitants of occupied territory are concerned, unless changed by the Occupying Power. For example, the penal laws of the occupied territory generally continue in force.

As a foreign State and as the paramount authority in the occupied territory, the Occupying Power is not bound by the municipal law of the occupied territory. For example, the Occupying Power would not be bound by a municipal law that had been enacted by the State of the occupied territory to prevent trading with the enemy. Similarly, the Occupying Power’s personnel are immune from the application of local law.

11.12.2 Departure of Protected Persons Who Are Not Nationals of the State Whose Territory Is Occupied.
Protected persons who are not nationals of the State whose territory is occupied may avail themselves of the right to leave occupied territory subject to the provisions of Article 35 of the GC, and decisions thereon shall be taken according to the procedure that the Occupying Power shall establish in accordance with Article 35 of the GC.

11.22.4.3 Contracting New Debt on Behalf of the Occupied Territory.
In general, the Occupying Power may not contract new debts (including through the issuance of debt securities) on behalf of the occupied territory or collect taxes to pay interest on such debt. However, new debt may be undertaken on behalf of the occupied territory if immediately necessary for the welfare of the inhabitants of occupied territory, and if undertaking such debt constitutes a fair and reasonable transaction.

11.22.4.4 Refinancing or Consolidating Existing Public Debt.
The Occupying Power may refinance or consolidate already existing public debt of the occupied territory if it is clearly in the interest of sound financial administration of that territory, and therefore of direct benefit to the inhabitants.

11.22.5 Currency and Exchange Rates.
The Occupying Power may leave the local currency of the occupied area in circulation. The Occupying Power may also authorize domestic authorities to re-issue currency if necessary for ensuring public order and safety.

The Occupying Power may introduce its own currency into the occupied area or issue special currency for use in the occupied area territory, should the introduction or issuance of such currency be necessary. There is a long history of issuing such war currency. The issuance of occupation currency may be necessary to counteract the enemy State’s practice of engaging in economic sabotage.

The Occupying Power may also set exchange rates for currency in occupied territory.

The Occupying Power’s powers to regulate currency must not be used to confiscate private property. For example, intentional debasement of currency by the establishment of fictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps to prevent inflation, with the result of enrichment of the Occupying Power, would violate international law.

11.23.6 Price Controls in Occupied Territory.
The Occupying Power may regulate prices in the occupied territory. For example, shortages of commodities and increased demand for certain commodities in the occupied territory may result in a rise in price fluctuations requiring the Occupying Power to resort to measures designed to maintain prices at a reasonable maximum level. However, the Occupying Power may not use its power over price controls for the purpose of exploiting the occupied territory to its own illegal advantage.