Military Government as a System of Rule: Peculiarities and Paradoxes
Military occupation typically entails some measure of military government. When in 1866 members of the US Supreme Court sought to disentangle various forms of authority exercised by the armed forces, they set out a threefold distinction. The authority exercised over members of those forces was described as the exercise of ‘military law’. Authority exercised by the armed forces over fellow citizens it described as ‘martial law proper’, clearly understanding the exercise of this authority as taking place in temporary states of emergency or conditions of civil war. Authority exercised by the armed forces over foreign citizens counted as ‘military government’.
Yet this military government has not been subject to systematic comparative study. Where textbooks of comparative politics or comparative government refer to ‘military government’, they mean those governments in which the normal positions of government are occupied by soldiers and where authority is exercised over fellow citizens, often for a prolonged period. Military government as a system of rule under conditions of military occupation can be said to have been largely ignored by the literature of political science.
Lack of legitimacy
This is unfortunate for it is also a fascinating form of government precisely because of its peculiarities and paradoxes. The first of these is simply that the military government is not the legitimate power or an agency of the legitimate power. That might seem to be nothing more than a simple consequence of the definition of military government as authority exercised by armed forces over foreign citizens, but it has a wider significance. Governments, especially those associated with the modern state, need to be understood as two-sided phenomena: on the one hand as political and administrative phenomena, having staffs and capacities, and on the other as moral and legal phenomena, especially as enjoying legitimacy. The power of functioning states rests on the combination of both dimensions. Where the two dimensions come apart or where one dimension is chronically undeveloped or crippled, the existence of the state is threatened in some measure. This condition has been recognized in the political science literature on ‘quasi-states’ or ‘failed states’ (the precise term used varies and is contentious) and is a recurrent theme in the law and practice of state recognition. Yet it is the normal condition of military government, which is acknowledged by the Hague Regulations as exercising authority but not enjoying legitimacy. The conclusion that might be drawn from this is that despite the power that has brought about the circumstance of occupation, and quite apart from the contingencies of any particular occupation, there is a fundamental weakness at the heart of military government as a system of political rule in occupied territory.
Multiple government structures
A second peculiarity is that the military government of the occupier does not normally comprise the only set of governing institutions. Occupiers lack the resources, especially the trained personnel, to replicate entire state structures and often lack the inclination to do more than they are forced to. Occupiers, then, typically seek to utilise elements of the existing structures of indigenous governance or to set aside existing structures in favour of new ones which they hope will be more effective or more in tune with their own interests and political proclivities. Only rarely do they seek to obstruct the emergence of new indigenous forms of governance and even then they do not succeed entirely; as the German occupations in parts of eastern Europe in both World Wars demonstrate. But establishing new or transformed indigenous governing structures has proven to be problematic despite the existence of the ‘successes’ of the history of occupation. Amongst the problems are that too much obvious subservience to the wishes of the occupier compromises the legitimacy of the indigenous government in the eyes of its own people and thereby threatens the viability of that government as a partner able to facilitate the exit of the occupier. The sheer recalcitrance of local conditions – at least as perceived by the occupier – can also readily lead to abandoning occupation to a government whose viability is questionable. The events of recent days in Afghanistan are illustration of that as was the American exit from Haiti, also after a twenty-year occupation, in the previous century.
This problem of what might be termed multiple government structures is further complicated where an exiled government also exists. This is at best a government that enjoys legitimacy but one that has been cut off from the empirical levers of state. In more complex cases, doubts about the legitimacy of the putative exiled government compound the problems as the exiled government attempts to assert effective control. Here the long and twisted road by which General de Gaulle made his way back to Paris is an obvious illustration. Whereas governments normally assert exclusive control over a specified territory, military government of occupied territory normally has to cohabit in the same territory as other government structures.
Personnel and training
A third peculiarity of the military government of occupied territory stands out if we compare it with the government of a normal functioning state in terms of its personnel and structure. A normal functioning state has a structure, guided by a constitution, including a series of offices to which people are elected or appointed on the presumption, well or ill founded, that they are disposed towards and fitted for the tasks of governance. Both the governed and the governors usually have at least some degree of familiarity with the requisite structures and practices. None of this holds good for military government. Attempts to establish some degree of training for military government have met with mixed results. Military government, then, is in varying degrees improvised government; improvised by people whose training and own structures of organisation are not geared to the governance of territory. Recourse to civilian personnel and organisations has been one of the responses to these problems since the days of the armies of revolutionary France and has continued to be to the present day. Ironically, it also potentially further compounds the problem of multiple government structures referred to above, especially where those civilian components have strong domestic power bases by virtue of personal connections or institutional power.
This helps to bring into focus another aspect of the importance of the personnel and structures of military government. Military establishments are shaped not only by their structures and training for the conduct of warfare but also by other considerations, including for example the nature and pattern of recruitment and assumptions about the appropriate relationship between those military establishments and other elements of their own societies. This is at least one aspect of the way in which the nature of the society behind the government of occupied territory affects the conduct of military government. The projection of the polyarchic state that was the Third Reich onto occupied territory is an obvious illustration of that point. Of course, this does not mean that the occupier replicates the position of its military establishment within its own society; at least not in any direct way. Indeed the position of the military establishment in the occupied territory can ensure that it possesses significant autonomy in relation to its own government or even an autonomy that embodies policies and principles opposed to those of its home society and government. Such at least was the charge levelled at General MacArthur’s military government of Japan.
The above reflections have been guided by the simple expedient of starting from a few common assumptions about the nature of government in general and then comparing those assumptions with the conduct of military government understood as a system of political rule over occupied territory. The result, it is hoped, is to provide some support for the suggestion made above that it is precisely the peculiarities and paradoxes of military government that make it a fascinating phenomenon to study.
Donald B Cooper, ‘The withdrawal of the United States from Haiti, 1928-1934’, Journal of Inter-American Studies, vol. 5, no. 1 (1963), 83-101
James Crawford, The Creation of States in International Law (Clarendon Press, 2006)
‘Ex parte Milligan’, US Reports, Vo. 71 (1866), 2-142
Jean-Germain Gros, ‘Towards a taxonomy of failed states in the new world order’, Third World Quarterly, Vol. 17, no. 3 (1996), 455-71
Inge van Hulle, ‘Britain’s recognition of the Spanish American republics’, The Legal History Review, Vol. 82 (2014), 284-322.
Robert Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990)
Hans Schmidt, The United States Occupation of Haiti 1915-1934 (Rutgers University Press, 1995)
The Hague Regulations are available at
Treaties, States parties, and Commentaries – Hague Convention (IV) on War on Land and its Annexed Regulations, 1907 (icrc.org)
Cover picture: The First International Peace Conference, The Hague, May-June 1899, © IWM (HU 67224)
There is a use of the term ‘Military Government’ to identify the status of law in the immediate area of the battlefield. In World War One this was confined in space but extended in time. In World War Two it tended to be a dynamic area. After World War Two in the British Zone it represented law until the hand-over to the Control Commission in August 1945. It then continued as in the background with some military officers being double-hatted. The US use of the term post 1945 was even more complex!