I. Introduction
Occupation is one of the best-known institutions of international law. It has been present in the legal world[1] for a long time. Over the years, it has found its regulation in various international legal sources (such as the Hague Conventions of 1907 and the Geneva Conventions of 1949) and national legislations (e.g., in the Bulgarian Criminal Code).
In the public consciousness, occupation and war are interconnected since, during military actions, a certain part of the territory of a state usually falls under the factual control of its enemy. In such cases, we call this a military occupation.
This institution of international law also has another sense. According to some theories,[2] occupation is a means of acquiring territory that is unpopulated or newly discovered and has never belonged to any state.[3] It is assumed that the said territory has been abandoned by its previous sovereign.[4]
Occupation as a means of acquiring “terra nullius” (nobody’s land) originates from Roman private law, representing a primary method of acquiring property rights over ownerless or abandoned things. The occupation was accomplished by establishing factual control over the respective things.
The concept of occupation was further developed by Hugo Grotius in his famous work “On the Law of War and Peace.”[5] In this treatise, Grotius highlights that “a thing can become our property through original or derivative acquisition. In the past… original acquisition could be achieved through division of property; currently, it is accomplished through occupation.”[6]
Over the centuries, legal and military sciences have adapted to the changes directly related to the conduct of war. Technologies have gradually improved, and larger armies have been formed. With an increased capacity for waging wars, their scope has also significantly expanded. Consequently, the size of occupied territories during wars has also grown substantially.
II. Military Occupation
Military occupation is one of the primary forms of occupation. It mainly arises during military actions when, as a result of offensives and other aggressive operations, a portion of the territory of the attacked state comes under the actual control of its enemy. History knows various cases of military occupation, ranging from the occupation of individual provinces or specific parts of a country to the complete occupation of the entire territory of a state.
During military operations, combatants use tactical maneuvers to establish control over a given territory. Civilian populations are affected by these movements of armed forces, and battles often occur around populated areas, inevitably disrupting their lives and livelihoods. However, the focus of this article is on the regime of occupied territories after military actions shift further into the affected state (i.e., when the affected lands become rear areas) or in cases of their cessation (e.g., through the conclusion of armistices).
The contemporary debate on the regime of occupation began in the 19th century. Numerous conferences were held in that spirit, such as those in Brussels (1874) and The Hague (1899 and 1907),[7] which discussed the order in occupied territories.
Since 1907, the regulation has changed significantly. Article 154 of the Fourth Geneva Convention (1949) explicitly provides that the Hague Convention has a subsidiary character (regarding the second and third parts of the regulations applied to the Hague Convention) when states are parties to both acts. This article includes the regulation from both the Hague and Geneva Conventions for the sake of completeness.
The Fourth Hague Convention on the laws and customs of land warfare (third part of the annexes) provides important legal definitions. Article 42 states: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territories where such authority has been established and can be exercised.”[8]
From this definition, it follows that for a territory to be considered occupied, its government must be unable to exercise its authority over it due to its ties with the enemy being severed. Based on this conclusion, the authors of the Fourth Hague Convention have derived the general rule in the following article. Article 43 obliges the occupier to “restore and ensure, as far as possible, public order and life.”
The following articles establish a series of prohibitions for the occupier concerning the civilian population. The occupier is not allowed to compel the population of the occupied territory to provide information about enemy combatants (from the occupier’s point of view) (Article 44), nor can it force the territory’s population to take an oath in its favor (Article 45).
The Convention focuses on the needs of the displaced occupying forces and the administration in the occupied territories. For example, Article 49 provides that the occupier has the right to levy additional taxes on the local population “for the needs of the army or for the administration of this territory.” The Hague Convention further imposes a requirement in Article 51: “No tax shall be collected except on the basis of a written order and under the responsibility of the commanding general.”
An important clarification on the regime of occupation is provided in Article 55, which designates the occupying state as the “administrator and usufructuary of public buildings, immovable property, forests, and agricultural estates in the occupied country that belong to the enemy state.” In this case, the Convention refers to properties in a state of public ownership, as Article 46 protects the private property of the citizens.
The act also defines as private property (Article 56) the properties of municipalities, as well as properties of religious, charitable, educational, artistic, and scientific institutions.
The experience gained during World War II and the persecutions conducted during its course demonstrated the need for further development of the international legal regulation of the occupation. In response to this demand, the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War was concluded on August 12, 1949. Compared to the Hague Convention, the regulation of the regime in occupied territories is much more detailed in the Fourth Geneva Convention (Articles 47-78).
Article 47 provides a general provision ensuring that the rights of the protected population under the Convention are inviolable.[9] Considering the bitter experience of forced deportations of individuals by German occupying authorities in France, Bohemia, Moravia, and other territories during World War II, Article 49 explicitly prohibits “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, regardless of the motive.”[10]
The protected population generally consists of non-combatant civilians, with special cases of individuals enjoying particular protection under the Convention. An example of this is children. Article 50 imposes an obligation on the occupying authorities to ensure the normal functioning of all institutions related to “the care and education of children.”
Another provision reflecting the accumulated experience from World War II is Article 51. This article prohibits the occupying power from recruiting individuals from the occupied territory as military personnel in its armed forces. This prohibition is further expanded to encompass propaganda and coercion aimed at inducing the population to voluntarily join the occupant’s armed forces.
The Geneva Convention provides protection for workers under employment relationships (Article 52), as well as for judges and other state officials detained by the occupying power (Article 54). Of particular importance is the obligation addressed to the occupier in Article 55, which requires the provision of food and medicine supplies to the population of the territory occupied by it.
Numerous provisions regarding public health and hygiene, spiritual support for religion, and the activities of the Red Cross, Red Crescent, and other humanitarian organizations further enhance the regulation concerning the rights and privileges enjoyed by the non-combatant population.
The occupier views the occupied territory as its rear area, from where its forces can direct further military actions. To ensure the smooth running of the war, the occupier seeks to maintain public order in this rear area through measures that are favorable to it. For this purpose, the occupying state introduces criminal and criminal procedural legislation, which applies to the civilian population in the occupied territory. The Fourth Geneva Convention brings extremely important regulation on this matter (Articles 64-78).
The occupying force is obliged to inform individuals in writing about any legal proceedings initiated against them, and in a language that is understandable to them. They must be informed of all relevant facts of the case. The Convention requires that the judicial phase of the proceedings be initiated as quickly as possible (Article 71).
The Geneva Convention guarantees a range of procedural rights, including the right to defense (Article 72) and the right to appeal (Article 74). Regarding the death penalty, the Convention seeks to limit its application. For imposed death sentences, Article 75 introduces a mandatory moratorium of six months for its execution.
The regulations discussed so far have been adopted into the Bulgarian Criminal Code. Article 412 of the Code lists offenses related to assaults against the person and property of the civilian population during wartime.
III. A Brief Overview of Post-War Occupation
A variety of military occupation is post-war occupation, where the victors in a war displace some of their armed forces to the territory of the defeated country for various purposes, depending on the conditions of the post-war peace.
Perhaps the most well-known examples of post-war occupation are those of France following the defeat of Emperor Napoleon I at Waterloo between 1815-1818 and Germany after World War II (1945-1949). This brief selection of post-war occupations illustrates the motives behind and the implementation of such types of occupation.
For example, Article 5 of the Treaty of Paris, concluded between the Coalition and France on November 20, 1815, provides specific reasons for introducing foreign contingents to French territory: “Because in France… a state of unrest and excitement still exists… precautionary measures and temporary guarantees for the security of neighboring states are necessary, it was deemed necessary for military positions to be occupied for a certain time along the borders of France by allied forces…”[11] The treaty explicitly stipulates that this occupation shall not harm the sovereignty of His Majesty the King of France (Louis XVIII).
In the case of Germany’s post-war occupation, a different model was applied. According to the decisions of the Potsdam Conference, the country was divided into four occupation zones, and the administration of the country was entrusted to the Control Council, consisting of the commanding generals of the armed forces of the United States, the United Kingdom, the Soviet Union, and France.[12] Each of these commanding generals executed the instructions of their respective national governments. In the case of Germany, no motivation for the occupation of the country was given in the documents, as such an explanation was not necessary. The public was well aware of the atrocities that accompanied World War II, and thus there was no need to provide explanations for why this particular country needed to be occupied in that specific situation.
The status of the government of the German Empire (Deutsches Reich) is a controversial issue. In German legal circles, there have been debates[13] about the legal personality and continuity of the German state during this period, but there is unanimity that it had effectively ceased to exist, which precluded its participation in international relations.
Germany’s status in the first post-war years (1945-1949) is a glaring example of how occupation can have deep and irreversible consequences on the state structure and sovereignty.
IV. The Right of the Occupier to Organize the Occupied Territory
The issue of the administrative organization of occupied territories is poorly regulated. Neither the Hague Conventions nor the Geneva Conventions provide detailed instructions on how to administer an occupied territory, and as a result, various approaches have been applied over the years.
In some cases, the occupied territory has been placed under the direct administrative control of the enemy state. In such situations, the occupying force establishes its own governing bodies, which supersede the existing local authorities (for example, the occupied Netherlands during World War II).
Another method involves the removal of the existing executive and judicial authorities and their replacement with new ones that comply with the laws of the occupier. For instance, in the disputed territory of Western Sahara, under Moroccan control, Moroccan law is applied in its entirety. From the perspective of the Kingdom of Morocco, Western Sahara is an integral part of its territory and is not seen as hostile.
A widely used method is the establishment of a dependent government over the occupied territory. Such a government often lacks the ability to make significant decisions without consulting the occupying force. Japan, during World War II, applied this regime when it occupied Chinese territories and European colonies such as Burma and French Indochina. In certain cases, the occupier seeks to legitimize the dependent governments by persuading the international community to recognize them and establish diplomatic relations. For example, with Japanese assistance, the state of Manchukuo established diplomatic relations with countries like El Salvador, Spain, Germany, and the Soviet Union. Nevertheless, this circumstance does not change the fact that this state was created due to Japan’s occupation.
V. Trusteeship and Occupation
Another international legal institution characterized by exercising factual authority over a specific territory is trusteeship. This is its only significant similarity with occupation, as there are considerable differences between the two. Trusteeship was widely applicable in the second half of the 20th century, but after Palau’s admission to the UN in 1994, there is no territory subject to the system of international trusteeship. Despite this, it still has its regulation in the UN Charter, which deserves consideration.
It is crucial to distinguish trusteeship from occupation in terms of its application. UN trusteeship is applied to former mandates of the League of Nations (1919-1946), and thus, this regime applies to a very limited number of territories. Article 78 of the UN Charter explicitly excludes the application of this system to UN member states.[14]
The current regulation can be found in the UN Charter, specifically in its twelfth chapter (Articles 75-91), titled “The Trusteeship System.” Article 76 of the Charter outlines the main objectives of this system, such as “to promote international peace and security” and “to encourage respect for human rights and fundamental freedoms.”
VI. Conclusion
Occupation is an institution that, despite being regulated by multiple sources, continues to generate controversies. International public law does not endorse unilateral changes made by one state to another through the use of force. However, it has established regulations to protect the civilian population and its property in such cases.
The complex nature of this institution and its strong political character make it a subject of study for international legal theory, which deserves careful consideration.
[1] Roberts, Adam. Occupation, Resistance and Law: International Law on Military Occupations and on Resistance. Oxford University Press, 1985.
[2] Stefanov, Georgi; Vidin, Blagoi; Zaharieva, Yulia; Pantev, Plamen. International Relations, International Law, Diplomacy – Short Encyclopedia. 2001.
[3] Ibid.
[4] Ibid.
[5] Original title: De iure belli ac pacis (1625).
[6] Grotius, Hugo. Grotius on the Rights of War and Peace: an Abridged Translation. 1853. Volume 1, Chapter III, p. 78.
[7] Benvenisti, Eyal. “The Origins of the Concept of Belligerent Occupation.” Law and History Review. 2008, p. 1.
[8] Stefanova, Slava. International Treaties and Acts 1648-1918. Science and Art, 1958, pp. 432. (For Hague Convention (IV))
[9] International Committee of the Red Cross. “Convention (IV) relative to the Protection of Civilian Persons in Time of War: Article 47 – Inviolability of Rights.” Geneva, 12 August 1949. URL: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=615B6A191D988A75C12563CD0051BD90
[10] International Committee of the Red Cross. “Convention (IV) relative to the Protection of Civilian Persons in Time of War: Article 49 – Deportations, Transfers, Evacuations.” Geneva, 12 August 1949. URL: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=77068F12B8857C4DC12563CD0051BDB0
[11] Stefanova, Slava. International Treaties and Acts 1648-1918. Science and Art, 1958, pp. 62-63. (For Paris Peace Treaty of November 20, 1815).
[12] Bevans, Charles I. Treaties and Other International Agreements of the United States of America (1776-1949), 1931-1945. Volume III: Multilateral. Department of State (Ed.). Washington: Department of State Publication, 1969, pp. 1207-1223. (For Decisions of the Potsdam Conference of 1945).
[13] Brief reference on the position of the Federal Constitutional Court on the post-war legal personality of the German Empire after 1945. URL: https://www.bundestag.de/webarchiv/presse/hib/2015_06/380964-380964
[14] UN Charter on Trusteeship/Guardianship. United Nations. URL: https://www.un.org/en/about-us/un-charter/chapter-12
