Occupation

Y. Arai-Takahashi – Preoccupied with occupation: critical examinations of the historical development ofthe law of occupationprescriptive powers, was predicated on the Instrument of Surrender. 79 This allowedthe US to pursue wholesale democratic reforms of Japan’s imperial and militaristlegacies while unchecked by the conservationist principle and other constraints ofthe 1907 Hague Regulations.In contrast, there has been a cacophony of justifications for the Alliedpolicy-oriented objective of carrying out de-Nazification and radical democraticreforms in West Germany. In anticipation of their occupations and policy ofimplementing sweeping reforms in laws and institutions, the western Allies insistedon unconditional surrender so that they could be exempt from the conservationistprinciple and other constraints of the Hague Regulations. One might argue that,while sovereignty continued to be vested in the German population, the Alliedpowers exercised ‘sovereign rights’ that they conferred upon themselves. 80 Despitethe Allies’ avowed intention to exclude the law of occupation as the source of theirauthority, some commentators explain the Allies measures within the framework ofthe Hague Regulations. Their methodology is to infer justifications from the‘necessity’ exceptions under Article 43. The thrust of their argument is that retainingthe Nuremberg race laws and other Nazi enactments would have endangered thesecurity of the Occupying Power. 81 On the other hand, other writers regard theAllied occupation of Germany 82 as the typical example of debellatio (subjugation),following the total collapse of effective government and the complete controleffected by the occupying armed forces. 83 Hans Kelsen expressly contended thatGermany as a sovereign state ceased to exist, 84 not least because of the total collapse79 See Niisuke Ando, Surrender, Occupation, and Private Property in International Law: An Evaluation of USPractice in Japan, Oxford University Press, Oxford, 1991, p. 87; E. Benvenisti, above note 52, pp. 92–93;Robert Cryer, ‘Of custom, treaties, scholars, and the gavel: the influence of the international criminaltribunals on the ICRC customary law study’, inJournal of Conflict & Security Law, Vol. 11, No. 2, 2006,p. 241, n. 14.80 M. Koskenniemi, above note 13, p. 34.81 Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The LegalRegulation of International Coercion, Yale University Press, New Haven, CT, 1961, p. 770. See also theprevious UK Military Manual: United Kingdom War Office, The Law of War on Land, Being Part III of theManual of Military Law, HMSO, London, 1958, p. 143, n. 1.82 The juridical state of occupation was considered to have ended in 1952, when the legal character of theforeign (US)-stationed armed forces changed: after the status of forces agreement reached between WestGermany and US, the continued stationing of the latter’s army can be considered to have been based onthe consent of the territorial government: S. Chesterman, above note 76, p. 55.83 G. von Glahn, above note 4, pp. 276–285. Compare, however, Lassa Oppenheim, International Law: ATreatise, 7th edition by H. Lauterpacht, Longmans, London, 1952, p. 553, para. 237a; Paul Guggenheim,Traité de droit international public, Vol. II, Librairie de l’Université, Geneva, 1954, pp. 468–469;Y. Dinstein, International Law of Belligerent Occupation, above note 5, pp. 32–33.84 Kelsen argued that: ‘By abolishing the last Government of Germany the victorious powers have destroyedthe existence of Germany as a sovereign state. Since her unconditional surrender, at least since theabolishment of the Doenitz Government, Germany has ceased to exist as a state in the sense ofinternational law. ...the status of war has been terminated, because such a status can exist only betweenbelligerent states’. Hans Kelsen, ‘The legal status of Germany according to the Declaration of Berlin’, inAmerican Journal of International Law, Vol. 39, No. 3, 1945, p. 519. In another article, Kelsen reinforcedhis view: ‘...the four occupant Powers have assumed sovereignty over the former German territory and itspopulation, though the term “sovereignty” was not used in the text of the Declaration [of Berlin, June 5,1945]. ...All this is in complete conformity with general international law, which authorizes a victoriousstate, after so-called debellatio of its opponent, to establish its own sovereignty over the territory andpopulation of the subjugated state. Debellatio implies automatic termination of the state of war. Hence, a66