Military occupation

The relevant international conventions, the International Committee of the Red Cross, and various treaties by military scholars provide guidelines on topics concerning the rights and duties of the occupying power, the protection of civilians, the treatment of prisoners of war, the coordination of relief efforts, the issuance of travel documents, the property rights of the populace, the handling of cultural and art objects, the management of refugees, and other concerns that are highest in importance both before and after the cessation of hostilities during an armed conflict.

A country that engages in a military occupation and violates internationally agreed-upon norms runs the risk of censure, criticism, or condemnation.

Since World War II and the establishment of the United Nations, it has been common practice in international law for occupied territory to continue to be widely recognized as occupied in cases where the occupant attempts to alter—with or without support or recognition from other powers—the expected temporary duration of the territory's established power structure, namely by making it permanent through annexation (formal or otherwise) and refusing to recognize itself as an occupant.

[8] Emer de Vattel, in The Law of Nations (1758), presented an early codification of the distinction between annexation of territory and military occupation, the latter being regarded as temporary, due to the natural right of states to their continued existence.

[12] On whether the definition of military occupation applies to anywhere else, the 2023 United States Department of Defense (DOD)'s Law of War Manual states the law of belligerent occupation generally does not apply to (1) mere invasion; (2) liberation of friendly territory; (3) non-international armed conflict; or (4) post-war situations (except for certain provisions of the GC [IV]).

The military government of the principal occupying power will continue past the point in time when the peace treaty comes into force, until it is legally supplanted.

Article 42 under Section III of the 1907 Fourth Hague Convention specifies that a [t]erritory is considered occupied when it is actually placed under the authority of the hostile army.

[18] Article 2 of the Geneva Conventions indicates that the definition applies to all cases of partial or total occupation of the territory of a High Contracting party, even if no armed resistance is encountered.

When it is not, the mere fact that the country is militarily occupied by the enemy is deemed sufficient notification to all concerned that the regular has been supplanted by a military government.

The survey of the case-law regarding Article 42[nb 2] of the 1907 Fourth Hague Convention reveals that the duration of effective control by the occupying power and its encounter with insurgents, terrorists or guerrillas that are able to exercise control over certain areas of the country are immaterial to the applicability of the law of occupation and do not alter the legal status of the occupied territory.

[20] For example, in 1948 the U.S. Military Tribunal in Nuremberg held that: In belligerent occupation the occupying power does not hold enemy territory by virtue of any legal right.

[20]According to Eyal Benvenisti, occupation can end in a number of ways, such as: loss of effective control, namely when the occupant is no longer capable of exercising its authority; through the genuine consent of the sovereign (the ousted government or an indigenous one) by the signing of a peace agreement; or by transferring authority to an indigenous government endorsed by the occupied population through referendum and which has received international recognition.