Post No.: 0726
Occupation during the course of an armed conflict occurs when one State exercises ‘effective’ control over the territory of another without a claim of formal sovereignty over that territory, whether the foreign armed forces are met with armed resistance there or not, or whether there’s even the physical presence of foreign troops on the territory or not i.e. if there’s nevertheless de facto control over the territory of a rival State.
As of posting, there are presently more recent and fast-evolving instances of military occupation – mainly by Russia over parts of Ukraine. But the case study I was taught with before the 2022 Russian invasion of Ukraine had even commenced concerns Israel over Gaza territory – including after 2005, because even though the Israeli forces had withdrawn, Israel still controlled the airspace, land crossings and territorial waters around the area, decided who is/isn’t a citizen of Gaza or the West Bank (Palestine), controlled the Palestinian Population Registry, the fuel and electricity supply, declared that residents will be shot if they entered certain ‘no-go’ zones, and deployed military incursions, rocket attacks and sonic booms over the area. The ongoing Israeli blockade on the Gaza Strip has also occasionally illegally prevented humanitarian relief from passing through to civilians in the area. According to the International Court of Justice (ICJ), the wall built by Israel in the occupied territories is outright illegal too for it could result in the de facto annexation of territory.
It will however not count as occupation if the government of the territory consents genuinely and validly to the foreign military presence there.
Temporary belligerent occupation, where control of the territory will eventually return to the original sovereign at the end of the hostilities, is distinguished from permanent territorial acquisition via invasion and annexation, which are illegal under international law. The acquisition of territory by force is illegal nowadays.
One could say this is extremely fortunate for those imperial powers in history that had forcibly colonised foreign lands before modern International Humanitarian Law (IHL) or International Human Rights Law (IHRL) existed – no nation today can try to do what the likes of Britain or France did (e.g. forcing indigenous peoples to assimilate or be ethnically cleansed in Australia and Canada); not necessarily because of a question of military capability but because of the legality and international censure for trying. Some critics consequently argue that the United Nations is Western-biased because the world map effectively ‘set in stone’ once Western powers were on top (which they weren’t always over the millennia). In other words, it’s metaphorically like a game of Splatoon but only once a particular player went into the lead, and not another, the game was declared finished there and then; and at this arbitrary point everyone could keep whatever patches they had painted with their own colour.
Geopolitical borders and the world map can still change but force from a foreign power is a far less acceptable way of doing so today. Even using force to prevent a potential internal breakaway of one’s own territory is nowadays seen as unconscionable, such as in the case of China regarding Taiwan, Hong Kong, Tibet and Xinjiang – at least depending on your international partisanship. (Understand that Tibet and Taiwan are still, and as of present, provinces of China according to official UN maps. This is more so than the Chagos Isles belonging to the UK – the UN designates them as a part of Mauritius.)
Countries or empires can lose territory through peaceful agreements, secession, dissolution or fights for independence, as the British Empire and Soviet Union have experienced for example. They can gain or merge territories through peaceful agreements, although this is less common. But territorial gains through violence are highly likely going to be frowned upon by the international community. However, it’s ultimately about how other countries accept and recognise the existences and borders of other countries, and there isn’t always universal agreement.
The progression towards more global peace should indeed not be reversed by undoing these modern international institutions and laws. Yet should the likes of Britain return more to the descendants of the natives of the lands that it had historically seized so much wealth from via military coercion? Anyway…
The occupying power is prohibited from transferring its own population into the occupied territory, and prohibited from forcibly transferring the protected population of the occupied territory out of this territory, unless to temporarily evacuate them for their safety.
Like concerning armed conflicts generally – IHL does not assess the legality of the occupation as such but simply regulates a factual situation (which is like how the Marquess of Queensberry Rules might regulate the conduct of a boxing match but does not assess whether a particular boxing match should be happening in the first place or not). Yet we do need to answer whether a particular situation amounts to an occupation or not to know whether specific laws of occupation should apply (like how we need to determine whether a fight is a boxing match or some other sport to know what rules should apply).
So defining the notion of belligerent occupation is an important matter but (like a range of details in IHL!) different scholars might disagree with the definitions and details, such as how much level of authority or control is sufficient? Whatever the case, an occupying power must maintain the public order and ensure the full protection and general welfare of the population that’s located in the occupied territory. Other treaty rules may also apply to States depending on which treaties (and reservations) they’ve ratified.
Another question is whether the law of occupation extends to the occupied State as a whole or only to the specific areas that are being occupied? The traditional view is that it extends only to the specific areas that are being occupied plus to areas where the occupying forces may be sent to ‘in a reasonable period of time’ to exercise its authority. An occupying power must ensure that the occupation is only temporary (e.g. no laws of the land, institutions or statuses of public officials can be changed, unless impossible not to), and has a duty of good governance to ensure or restore public order and the well-being and safety of the population for the duration of the occupation. An occupying power may take certain measures that are necessary to protect its own security and ensure the sustenance of its own army if present though. The fundamental human rights of the population under occupation must be respected at all times. Woof.
The law of occupation doesn’t apply in non-international armed conflicts (NIACs) – only international armed conflicts (IACs). Yet what if rebels occupy part of the national territory of a State? Compared to a State, non-state actors are less structured and organised so will very likely have limited capabilities to comply with detailed IHL norms (e.g. to provide judicial guarantees like impartial tribunals), and States probably wouldn’t want to give non-state actors certain occupier privileges anyway (e.g. the right to intern people who are considered a risk to security even before they’ve partaken in any hostilities, or to interfere with people’s property rights out of military necessity). That’s why it’s argued that existing international humanitarian and human rights laws, and customary laws, remain appropriate for NIACs.
…The law of neutrality regulates the conduct between belligerent and non-belligerent States, and the right of the latter to not be adversely affected by an armed conflict it has chosen not to participate in. A formal declaration of neutrality will help but isn’t a legal necessity.
However, that right has been significantly curtailed due to the existence of the UN ‘collective security’ system, which may require States to take a side in an armed conflict or forbid trade with one or more of the belligerents.
Jus in bello (the law regarding the conduct of war) violations committed by one State cannot normally justify a resort to force by another State under jus ad bellum (the law regarding the entering of war). No consideration of whatever nature – whether political, economic, military or other – may serve as a justification for aggression. But there may be a case under the UN ‘collective security’ system for the UN Security Council to impose sanctions and authorise the use of force against States when such violations amount to a threat to international peace and security.
The lawfulness of States acting unilaterally in using force on the territory of another State (i.e. without either the authorisation of the UNSC or the consent of that State) for humanitarian purposes is highly controversial. However, the UN ‘Responsibility to Protect’ (R2P) commitment was developed to permit military interventions that prevent genocide, ethnic cleansing, war crimes and crimes against humanity. According to R2P, States have a responsibility to protect their own population from those four situations, or must seek and accept help from another State if they’re not able to do that on their own – otherwise the international community has the responsibility to take the initiative to act, including via, as a last resort, the deployment of force.
However, in practice, authorisation from the UNSC is still required if force will be used, which suggests that R2P doesn’t really add anything different to what already exists. Moreover, military alliances like NATO complicate matters regarding whether States should sensibly always militarily intervene in the aid of another State, in case this escalates rather than deescalates matters – as we’ve seen regarding NATO member States and how far they should get involved in order to help Ukraine in the present conflict without sparking a war between nuclear powers.
Regarding the territory of a neutral State – it’s prohibited to commit any act of hostility whatsoever on neutral territory. Troops and combat supply convoys from belligerent States must not even pass across neutral territory. Humanitarian assistance can pass through though.
In return, a neutral State, and the nationals of neutral States, have a duty of impartiality and non-participation, otherwise they’ll lose their neutral status. This includes not supplying military assets like materiel or ammunition to a belligerent power. (This principle is being tested by Western States in the present Russo-Ukrainian IAC however. Scholars have been debating such issues. Regardless, what’s possibly lawfully permissible may not be what’s sensible politically, economically and militarily in the case of the Russian government thinking about expanding the list of official belligerents. Belarus voluntarily hosting Russian forces to provide them closer access to Kyiv is a clearer example of violating the law of neutrality. But similarly, would Ukraine extending the fight there be sensible even if it lawfully could?) Pre-existing commercial trade deals with belligerent States can generally continue as before the outset of the conflict though. The armed forces of a neutral State can do whatever’s needed to repel any violation of its territory; albeit it should consider force as a last fuzzy resort.
It’s generally accepted that if belligerent forces enter neutral territory and if the neutral authority is unwilling or unable to expel or intern them, then the adverse party is allowed to pursue and attack them there i.e. a hot pursuit. It can become complicated when considering what to do with people who desert their armed forces though – would the neutral act be to accept them as asylum seekers or to return them? Escaped POWs (prisoners of war) who reach neutral territory are to be ‘left at liberty’ – although whether they should be allowed to return to their home country, where they might then later rejoin the hostilities, is unclear. Such rules and more (e.g. the intentional transfer of POWs or the treatment of the wounded and sick on the territory of a neutral State) could be decided by specific agreements between the States concerned.
Woof. If you want to learn more about IHL, please check out Post No.: 0710, where I examined an overview of lawful (or really unlawful) weapons or means, and methods, of warfare.