Occupation

Volume 94 Number 885 Spring 2012It would be enough for the occupier to refuse to assume its duties under the law inorder to be regarded as not actually exerting authority over the territory it had justinvaded. Ultimately, such an approach could encourage foreign forces to refrainfrom maintaining law and order or from meeting the basic needs of the localpopulation – simply to avoid being regarded as the Occupying Power. This wouldleave the local population without any protection, because its own governmentwould be incapable of governing the area and the foreign troops would be unwillingto do so. In addition, a test based on the ability to exert authority would prevent anyattempt by the Occupying Power to evade its duties under occupation law byinstalling a government by proxy that would exercise governmental functions on itsbehalf.Therefore, the notion of authority under Article 42 of the HagueRegulations should be interpreted as referring to the local government’s submissionto the foreign forces’ military superiority resulting from the successful invasioncombined with the ability of these foreign forces to exercise governmental functionsin lieu of the local government.Finally, in relation to interpreting the notion of authority for the purposesof the occupation test, one should also examine the impact of local armed resistanceon the Occupying Power’s ability to exert authority in the occupied territory. It is anestablished principle of IHL that military occupation can be said to exist despite thepresence of resistance to it, and can be said to exist even when some part of theterritory in question is temporarily controlled by resistance forces. 60 Paragraph 509of the 2004 UK Manual of the Law of Armed Conflict stipulates clearly thatoccupation does not become invalid because some of the inhabitants are instate of rebellion, or through occasional successes of the guerrilla bands or‘resistance’ fighters. Even a temporarily successful rebellion is not sufficient tointerrupt or terminate occupation, provided that the authority of the legitimategovernment is not effectively re-established and that the occupant suppressesthe rebellion at once.However, if foreign armed forces are required to engage in significant combatoperations to recapture the area in question from forces of the local armedresistance, that part of the territory cannot be considered to be occupied until theforeign forces have managed to re-establish effective control over it.The US Army’s Field Manual 27–10, in its Section 356, stipulates that‘the mere existence of a fort or defended area within the occupied district, providedthe fort or defended area is under attack, does not render the occupation of theremainder of the district ineffective’. Thus, the existence of an unoccupied spacewithin a larger area under the effective control of the foreign troops does not negate60 See US Tribunal at Nuremberg, Hostages trial, above note 2, p. 56. The Court stated that ‘while it is truethat the partisans were able to control sections of these countries at various times, it is established that theGermans could at any time they desired assume physical control of any part of the country. The control ofthe resistance forces was temporary only and not such as would deprive the German Armed Forces of itsstatus of an occupant’.151