Occupation

Volume 94 Number 885 Spring 2012case of Mathot v. Longué, 58 the Court of Appeal of Liège, contrary to somedecisions, 59 rejected any room for legislative manoeuvre on the part of theOccupying Power. It ruled that ‘the orders of the occupying Power ...are not laws,but simply commands of the military authority of the occupant’, 60 and thatthe German order had therefore possessed ‘no legal value’. 61 Underlying theBelgian courts’ decisions was the so-called ‘Belgian school’, 62 according towhich legislative and administrative acts adopted by the Occupying Power areonly de facto commands, without any legal effect. 63 Benvenisti criticizes thisview as ‘extreme’. 64 As he notes, 65 the Belgian judicial approach underwent anuneven change. During the German occupation in World War II, the Court ofCassation reverted to the judicial tendency, prevalent during World War I, toreject handing down a judgment on legislative measures issued by the OccupyingPower. 66 In the aftermath of World War I, the Allies occupied the Rhinelandthrough the Inter-Allied Rhineland High Commission (1919–1930). However, as itslegal basis lay in the Treaty of Versailles, this can be viewed as a case of nonbelligerentoccupation (occupatio pacifica). 67 In the legal discourse of the interwarperiod, despite the deviations from the general rules on occupiers’ legislative powerduring World War I, the normative framework on occupation remained intact.Writing during World War II, Feilchenfeld commented that the survival of thelaw of occupation between 1918 and 1935 owed much to the absence of major58 Mathot v. Longué case, above note 57.59 See, for instance, the Bochart case, above note 57 (upholding the Occupying Power’s legislative measure,the German Order of 8 August 1918, which was, even if taken pursuant to a personal profit of its ownnationals, designed to regulate the high price of vegetables); and City of Malines v. Société Centrale pourl’Exploitation du Gaz, Belgian Court of Appeal, Brussels, 25 July 1925, reported in Arnold D. McNair andH. Lauterpacht (eds), Annual Digest of Public International Law Cases: 1925–1926, No. 362, (1929), p. 475(recognizing the legal authority of the Occupying Power to issue administrative decrees, which were partlyresponsible for increase in gas supply, as measures justified by the necessity for providing for the needs ofthe civilian population).60 Mathot v. Longué case, above note 57, p. 464.61 Ibid. The Court added that: ‘...it is unacceptable to say that by virtue of the [Hague] Convention theOccupying Power has been given any portion whatever of the legislative power ...it appears from the textof the Convention itself and from the preliminary work that all that was intended ...was to restrict theabuse of force by the Occupying Power and not to give him or recognize him as possessing any authorityin the sphere of law ...The law remains the apanage of the national authority exclusively, the OccupyingPower possessing de facto power and nothing more’. See also De Brabant and Gosselin v. T. and A. Florentcase, above note 57.62 C. de Visscher, above note 55, pp. 72–81; E. Benvenisti, above note 52, pp. 44–47, 194.63 C. Rousseau, above note 49, pp. 139 and 153, paras. 92 and 99, and the cases cited therein.64 E. Benvenisti, above note 52, p. 46.65 Ibid., pp. 194–195.66 See, for instance, Belgian Court of Cassation, In re Anthoine, 24 October 1940, [1919–1922] AD CaseNo. 151.67 Article 428 of the Treaty of Versailles (1919). See Y. Dinstein, International Law of Belligerent Occupation,above note 5, p. 36 (contending that even the first phase of this occupation, which was predicated on theArmistice agreement, could be categorized as a ‘pacific (non-belligerent) occupation’). See also ibid., p. 270(discussing the French and Belgian claim that their joint re-occupation of the Ruhr Valley in 1923 wasbased on Article 430 of the Treaty of Versailles).63