Occupation

Volume 94 Number 885 Spring 2012The use of the words ‘in fact’ clearly affirms that it is the facts that establish theexistence of a state of military occupation.This position has since been endorsed by the US Military Tribunal ofNuremberg in the Hostages trial, which stated that ‘whether an invasion hasdeveloped into an occupation is a question of fact’. 2 It has also been reaffirmed inrecent, emblematic decisions handed down by the International Court of Justice(ICJ) 3 and the International Criminal Tribunal for the former Yugoslavia (ICTY). 4In addition, a number of military manuals have adopted the position expressed inthe Oxford Manual and in international jurisprudence. For example, the US FieldManual 27–10 specifies in its Section 355 that ‘military occupation is a question offact’. 5Therefore, the definition of occupation, as set forth in Article 42 of theHague Regulations, does not rely on a subjective perception of the prevailingsituation by the parties to the armed conflict, but on an objective determinationbased on a territory’s de facto submission to the authority of hostile foreign armedforces.A determination of this kind, based on the prevailing facts, conforms to thestrict separation of jus in bello from jus ad bellum. The separation retains all itsrelevance and validity for situations of occupation. This was expressly stated by theUS Military Tribunal at Nuremberg: ‘International law makes no distinctionbetween a lawful and unlawful occupant in dealing with the respective duties ofoccupant and population in occupied territory’. 6 Therefore, the law of occupation,as a branch of IHL, applies without any adverse distinction based on the nature ororigin of a particular armed conflict, the objectives pursued by the occupying power,the lawfulness under jus ad bellum of the extra-territorial military intervention, orthe causes espoused by or attributed to the parties to the conflict.Nonetheless, establishing, on a factual basis, that foreign forces exert asignificant degree of authority over a territory is a complex exercise, mainly becauseof the ‘fogs of war’. In this regard, the transition between the invasion andoccupation phases is particularly difficult to identify with exactness. 7 Given thisdifficulty, determining the existence of an occupation would undoubtedly be made2 See US Tribunal at Nuremberg, Hostages trial, Law Reports of Trial of War Criminals, Vol. III, UN WarCrimes Commission, 1949, London, p. 55.3 In a recent case – DRC v. Uganda – the ICJ was emphatic that it had to examine the prevailing facts beforestating that Uganda had in fact established its authority over parts of the territory of the DemocraticRepublic of the Congo; ICJ, Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment,19 December 2005, para. 173.4 To interpret the notion of occupation, the ICTY made literal use of the Nuremberg Tribunal’s formula anddecided that ‘the determination of the existence of a state of occupation is a question of fact’; ICTY,Prosecutor v. M. Naletilić and V. Martinović, Judgment, Case No. IT-98-34-T, Trial Chamber, 31 March2003, para. 211 (hereafter Naletilić case).5 FM 27-10, Department of the Army Field Manual: The Law of Land Warfare, Washington, DC, July 1956.See also, for instance, Canada, Joint Doctrine Manual: Law of Armed Conflict at Operational and TacticalLevels, JAG Office, 2001, Section 1203(1); New Zealand Defence Force, DM 112, Interim Law of ArmedConflict Manual, 1992, Section 2(1302)(1).6 US Tribunal of Nuremberg, Von List case, Law Reports of Trial of War Criminals, Vol. VIII, 1949, p. 59.7 For instance, it has been extremely difficult to identify the precise date marking the beginning of theoccupation of Iraq in 2003. This is mainly because of the continuation of hostilities, the advance of the135