Occupation

Volume 94 Number 885 Spring 2012Effective control during invasion:a practical view on the applicationthreshold of the law of occupationMichael BotheMichael Bothe is Professor Emeritus of the Johann Wolfgang Goethe University, Frankfurt-am-Main(M.Bothe@jur.uni-frankfurt.de).The question asked by the editors –‘Is the law of occupation applicable during theinvasion phase?’–relates two situations to each other, ‘occupation’ and ‘invasion’.While the term ‘occupation’ is defined in IHL, controversial as the fine tuning of thedefinition may be, the term ‘invasion’ is not. For the purposes of this comment, theterm will be taken in its ordinary, common meaning. In a military context, it meansthe movement of military units into an area belonging to another state. In this sense,it is, for instance, used in the UN General Assembly definition of aggression, whichincludes: ‘(t)he invasion or attack by the armed forces of a State of the territory ofanother State’. 11The existence of an occupation triggers the application of a specific legalregime that one finds in the Hague Regulations, which constitute customary law, inthe Fourth Geneva Convention, and in certain details in the First AdditionalProtocol to the Geneva Conventions. This regime cannot apply unless there is anoccupation. During an invasion phase, it can only be applied if and to the extent thata situation of occupation has arisen at the same time. In legal instruments that dealwith both invasion and occupation, however, occupation is generally seen as asituation that arises after an invasion, or that is the result of an invasion. Thus, theparagraph of the definition of aggression quoted above also includes ‘military11 United Nations General Assembly, Resolution 3314 (XXIX), 14 December 1974, Annex, Art. 3(a).37