Occupation

Volume 94 Number 885 Spring 2012The constitutive elements of the notion of effective controlInternational jurisprudence, some army manuals, and legal scholarship tend topropose a consistent approach to the notion of effective control based on the abilityof the foreign forces to exert authority, in lieu of the territorial sovereign, throughtheir unconsented-to and continued presence in the territory in question. Withregard to international jurisprudence, the US Military Tribunal in Nuremberg statedthe following, in connection with the Von List case:The term invasion implies a military operation while an occupation indicatesthe exercise of governmental authority to the exclusion of an establishedgovernment. This presupposes the destruction of the organized resistance andthe establishment of an administration to preserve law and order. To the extentthat the occupant’s control is maintained and that of the civil governmenteliminated, the area will be said to be occupied. 24The Tribunal also emphasized the importance of the potential ability of theOccupying Power to effectively enforce its authority in the area in question: ‘While itis true that the partisans were able to control sections of these countries at varioustimes, it is established that the Germans could at any time they desired assumephysical control of any part of the country’. 25More recently, in its decision in the case of DRC v. Uganda (2005), the ICJstated:In order to reach a conclusion as to whether a State, the military forces of whichare present on the territory of another State as the result of an intervention, is an‘occupying Power’ in the meaning of the term as understood in the jus in bello,the Court must examine whether there is sufficient evidence to demonstratethat the said authority was in fact established and exercised by the interveningState in the areas in question. In the present case the Court will need to satisfyitself that the Ugandan armed forces in the DRC were not only stationed inparticular locations but also that they had substituted their own authority forthat of the Congolese Government. 26Other elements that could form part of the notion of effective control have alsoemerged in the jurisprudence of the ICTY. In the Naletilić case, it elaborated a fewguidelines for determining whether a situation amounted to occupation:To determine whether the authority of the occupying power has been actuallyestablished, the following guidelines provide some assistance:– the occupying power must be in a position to substitute its own authorityfor that of the occupied authorities, which must have been renderedincapable of functioning publicly;24 See US Tribunal of Nuremberg, Von List case, above note 6, pp. 55–56.25 Ibid.26 ICJ, DRC v. Uganda, above note 3, para. 173.141