The Codification of the Law of Occupation at the Brussels Conference of 1874 and the Hague Conventions of 1899 and 1907

Jonathan Gumz, University of Birmingham

At first glance, belligerent occupation’s emergence as a temporary form of occupation during a conflict which left the sovereignty of the defeated state untouched appeared straightforward from an international legal perspective.  The Franco-Prussian War of 1870/1871, especially its latter phase, with the difficulty that Prussia faced in bringing the war to a close, brought up old dangers when it came to war in Europe.  Above all, it was a moment where France, absent Napoleon III, fought past the point of defeat and Prussia generally responded with a panicked brutality to any French civilian resistance.  It conjured ghosts of older conflicts from the early 19th century where powers had also fought past the point of defeat, leading to increasingly uncontained conflict.  It also showed the degree to which some of the practices and lessons of the post-1815 occupation had been forgotten within parts of European militaries.  In this sense, the Napoleonic period constituted a double exception.  An exceptional historical moment not to be repeated, but through its exceptionality, some of its practical concrete lessons could be forgotten.  Beyond occupation, if Europe after 1815 had, out a variety of motives, sought to create an international system that would contain conflict, then the Franco-Prussian War with its violent end, filled with insurrection and insurgency, offered a glimpse at an unsettling future that resembled a disturbing, yet repressed, past.

Out of this came the Brussels Conference of 1874, which sketched out a vision of belligerent military occupation, where territory could be temporarily held by an invader without the defeated side losing sovereignty over that territory.  Local government would continue to function, property would be left largely untouched, and the final status of the territory, though it was not explicitly stated, was clearly something to be resolved through negotiation, not conflict.  The Hague Conventions of 1899 and 1907 codified the results of the Brussels Conference of 1874.  Codification, however, only took place with a great deal of controversy and the Brussels Conference failed to reach an agreement because of this controversy, which largely centred on the limits of resistance to an invading force and when precisely a belligerent occupation would be established.  All agreed that there was a point at which resistance should cease, but when this point could be declared was a matter of controversy.  Too soon and an invading army could declare an occupation to delegitimize resistance in order to place resistance fighters outside international law.  But requiring an invading army to have a physical presence in every hamlet of the invading country was practically impossible and essentially opened the door to never ending war.  Agreement was finally reached at The Hague because, above all, recognising and regulating belligerent occupation as part of the rules of war created an incentive for the defeated to not fight past the point of defeat.  It was temporary and sovereignty did not change hands through occupation alone.  If sovereignty were to change hands through the successful exercise of force, it would raise the already high stakes of conflicts to something potentially existential for states.  An existential conflict would spill out of control, legitimize a range of military tactics and strategies outside the ‘laws and customs of war’, and present fundamental challenges to the containment of conflict.

For negotiators at The Hague, belligerent occupation seemed, at least, to be a contested, but accepted component of war containment, at the time a story of potential disaster averted.  International law codified belligerent occupation and was not irrelevant.  More than that, it went beyond the segmented agreements and practices that emerged in the aftermath of the Napoleonic wars to establish an approach to occupation that would apply across a range of scenarios.  Being part of codified international law at least provided a claim to universality, though perhaps not an entirely convincing one.  For some, belligerent occupation was part of the narrative of the progress of international law.  Here one could focus on the Martens’ Clause from the Hague Convention of 1899, which placed ‘the inhabitants and belligerents under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.’  Of course, the reference to ‘civilized nations’ also bracketed belligerent occupation off from wide sections of the colonial world.

If one looked beyond the surface, however, the concept of belligerent occupation as codified in the Hague Regulations was connected to a series of explosive issues that created potential paths to the very type of uncontained conflict that it sought to avoid.  Perhaps the most significant was the idea of ‘necessity’ which lurks within belligerent occupation. Mentioned in the Preamble and Article 49 of the Regulations, and indirectly in Article 43, it suggested there were certain situations that would allow the invading army and the occupier to go beyond the (legally) agreed terms of belligerent occupation and to act under the compulsion of a contingent moment.  Of course, as we know from the work of Isabel Hull on the Imperial German Army, such moments of ‘military necessity’ could be very difficult to define precisely and could quickly expand in an uncontrolled manner.  From a legal perspective, ‘necessity’ is extremely difficult to define precisely because it is so context dependent.  All 19th-century great power armies had such ‘necessity’ clauses in their internal regulations, but they were often only vaguely defined.  Suffice it to say that when it came to transgressions, violent or otherwise, of the rules governing belligerent occupation by occupiers, it was the rare case where some form of the ‘necessity’ clause was not invoked, and honestly invoked one might add.

Yet, ‘necessity’ was an opening which potentially tied belligerent occupation to another legal category floating through the 19th century and, eventually, into the 20th.  That category was ‘emergency’.  Moments of ‘necessity’ worked hand in hand with the broader legal condition of ‘emergency’.  Belligerent occupation strenuously worked against, but failed to fully extinguish the need to recognize the existence of an emergency legal situation.  Belligerent occupation stressed a lack of emergency – municipal law was to continue and the local officials of the belligerent state were to stay in place and execute their routine duties.  But it also envisioned that a placid state of law would emerge from emergency legal conditions, both on the side of the invading army and on the side of the defeated state and army.  Supposedly, the emergency conditions and ‘exceptional’ state of law on the eve of occupation would yield to a rapid restoration of normality within the occupied territory.  An army directing an occupation, however, facing moments of ‘necessity’ might find a path to a state of emergency far more congenial than working within the confines of existing law as implied by the regulations governing belligerent occupation.

By skirting so closely to a state of emergency, belligerent occupation also touched the very spectre from which it was supposedly separated through the veil of civilization.  That spectre was the colonial spectre, where belligerent occupation certainly did not apply, but where states of emergency routinely existed.  From Morant Bay in Jamaica to the US in the Philippines, states of emergency were common in the 19th century colonial world and were hardly moments of contained war, but moments in which conflict rapidly spilled out of control.  The absence of any semblance of rule of law during such states of emergency was contextually linked to a perceived ‘necessity’ to act in ‘exceptional’ circumstances, as seen from the point of view of colonial administrations and military forces.  A colonial context always potentially lurked in the background of belligerent occupation.

There is a final point about belligerent occupation that is worth making given that this series of blog articles concentrates on the earlier portion of the 19th century.  At the time belligerent occupation was debated and codified, it was clear that the institution that would be most involved in administering the occupied territory would be the army.  That was a very dangerous proposition and one that 20th-century historians, often in thrall to a narrative of military professionalization, occasionally miss.  Professionalization in the 19th century sense often suggests that militaries were becoming easier to control, their violence canalized, and increasingly confined to other militaries.  The extreme violence of such armies in the course of the 20th century frequently only seems to be possible through reference to ideology that somehow subverts professionalization, presenting the 20th century army as a much more violent force than its 19th-century predecessor.  Yet, the 19th-century army was a rickety, inherently difficult to control force, with a very thin corset of professional officers and NCOs restraining a mass of conscripts, all of whom came from 19th-century European societies where the level of everyday violence was well beyond that of our contemporary societies.  A quick perusal through military legal records in places like the vast Militärgerichtsarchiv in the Austrian State Archives reveals the high levels of violence with which these forces were accustomed.  In some ways, it was these 19th-century forces that would fight the wars of the early 20th century, above all, the First World War.  Whether or not such forces could handle the delicate balancing act required in the legal regulations governing belligerent occupation, without moving down the easier path of necessity and states of emergency which for much of the 19th century imperial armies had found so congenial, would be a question that would be decided in the early 20th century.