What is an Occupation? On the Boundaries of a Disputed Subject
Camilo Erlichman, Maastricht University and Christopher Knowles, King’s College London
‘Occupation’ is a complex phenomenon that escapes any simple definition. Different academic disciplines approach the subject in distinctive ways that reflect their internal intellectual concerns and forms of knowledge. This article explores the porous boundaries of the subject by discussing three possible understandings of ‘occupation’ that have emerged in the fields of international law, political science, and history, with reference to previous articles on the Blog and papers to be given at the forthcoming Network Conference in July this year.
In so doing, it addresses the wider conceptual question about the delimitations of the phenomenon, an issue that has vexed scholars of occupation for some time.
‘Occupation’ is defined in international law, in accordance with Article 42 of the Hague Regulations of 1899/1907, as ‘territory actually placed under the authority of the hostile army’ during or after war. Should related phenomena, however, that do not clearly fall under this legal definition be excluded from the field of Occupation Studies? For example, there are a number of ruling systems that constitute what Michael Hechter has called ‘alien rule’ and that have often been implicitly or explicitly described using the language of occupation. They include the seizing of territory by a ‘hostile army’ during and after a civil war; Empire in some or all of its various guises as settled dominions, directly ruled colonies, indirect dependencies, protectorates, and mandates; ‘peacekeeping’ missions and ‘humanitarian aid’ operations by states or by international and non-governmental organisations; the establishment of military bases on foreign territory; as well as the setting up of ‘puppet regimes’ that are nominally local and civilian, but depend for their existence on an external power’s military force.
The present article suggests that our understanding of all these related phenomena can be enhanced by studying them through what one might describe as an ‘occupation lens’ that combines three central elements that emerge from how the phenomenon of ‘occupation’ has been conceptualised in different disciplines: (1) a legal understanding of occupation that involves the temporary control over space by a hostile army; (2) a political understanding of occupation as a form of makeshift government that is characterised by the exercise of power without sovereignty, resulting in a ruling system that lacks the bureaucratic structures, procedures, and resources of a modern state; (3) a historical understanding of occupation as a form of foreign rule based on force or the threat thereof, leading to a significant legitimacy deficit that fundamentally affects the relationship between rulers and ruled.
In proposing to adopt an approach towards occupation and related phenomena that incorporates some or all of these three features, we are deliberately not advancing a single definition. It seems to us that such a project will inevitably run into significant difficulties as it cannot adequately respond to the conflicting normative, conceptual, and methodological needs of very different disciplines. Rather, a juxtaposition of these three understandings of occupation reveals a more fundamental truth about occupation and its terminological ambiguity: the scope and the boundaries of what has been legally, politically, and historically labelled as ‘occupation’ are determined by the oftentimes clashing perceptions of three distinctive groups: the concerns of the international community; the interests of the occupier; and the lived experiences of the occupied population.
Occupation as the Control of Territory by a Hostile Army
The first and narrowest definition of ‘occupation’ to be considered here is that in Article 42 of the Hague Regulations Concerning the Laws and Customs of War on Land, 1907: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army’ or in the arguably more authentic French text: ‘Un territoire est considéré comme occupé lorsqu’il se trouve placé de fait sous l’autorité de l’armée ennemie’.
Occupation as understood in international humanitarian law, arises from and follows a state of war and is therefore sometimes described as ‘belligerent occupation’, as discussed by Jonathan Gumz in his article on the Network blog on the codification of the law of occupation. ‘Belligerent occupation’ is considered to be first and foremost a temporary condition, to be resolved on signature and ratification of a peace treaty between the opposing parties. In addition, under international law, the basic tenets of an occupation regime include a lack of sovereignty, with the occupiers taking on a form of trusteeship for the population. The Hague Regulations determined that by exercising control over land and people without seizing sovereignty, an occupier incurs a number of responsibilities, most notably those captured in the Regulations’ famous Article 43: ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’. As Yael Ronen has shown in her article on the Network blog, this has led some legal scholars to argue that ‘when an occupant repudiates any of these basic tenets, by rendering the regime non-temporary, acting as sovereign, or subjugating and dispossessing the population, the occupation itself becomes illegal’.
The temporary control of territory by a hostile army is, therefore, essential to this conception of occupation. The international law of occupation, however, was not intended to handle cases of what one might describe as ‘internal’ occupations that evince the very same features of a hostile army taking possession of a territory. Most notably, this is the case in instances of civil war. Nonetheless, these have been a frequent feature of military conflicts since the nineteenth century. For the purpose of conceptualising the phenomenon of occupation, the central notion of ‘territory actually placed under the authority of the hostile army’ could therefore be plausibly extended to include situations that relate to the ‘occupation’ of territory following conflict within rather than only those between nation states. Possible examples include, first, the occupation of territory previously held by the other side during a civil war, such as during the US and Spanish civil wars and, second, internal rule by a military dictator whose authority can only be maintained by armed force. In the latter case, the inhabitants of a territory under martial law may see little difference between the conduct of a foreign ‘hostile army’ imposing public order or suppressing dissent, and that of the military forces of their own state. As Michael Rowe has shown, from the perspective of the Napoleonic Empire’s rural hinterlands, the practice of government in the ‘occupied’ parts of foreign states, from Portugal to Germany to Poland, was remarkably similar to ‘normal’ Napoleonic government of rural France. There are two reasons, however, why such internal use of force is not generally considered as ‘occupation’. First, because international law regulates conduct between, not within states; and second, it can be plausibly argued that all forms of government, of whatever persuasion, depend on the use of force, by the police or on occasions, such as during a ‘state of emergency’, by the armed forces.
Significant difficulties also arise with a narrow understanding of occupation as territorial control by a ‘hostile army’ if the occupation becomes protracted and does not end, such as through liberation, through annexation agreed in a peace treaty, or through the occupying state eventually being accepted by the local population as the legitimate ruler of the territory. If the occupier establishes, for example, a (puppet) civilian administration, comprising either its own officials, or selected or nominated and thus dependent local representatives, the majority of the population of the territory may still consider that they live under conditions of occupation, as for example the inhabitants of Norway did under German occupation during the Second World War, despite the existence of a puppet state and administration headed by a Norwegian, Vidkun Quisling. In other cases, an occupying state might simply keep postponing its terminus date, thus, as Aeyal Gross has argued, turning an occupation into a form of long-term domination, while still defining itself as a short-term venture by referring to the label and law of occupation.
The unilateral and illegal annexation of territory formerly held by another state poses similar problems to the conceptualisation of occupation as enshrined in international law. Examples for this include the purported ‘reunion’ of Crimea and the Donbas (and other Ukrainian territories) with the Russian Federation, perceived by Ukrainians (but not by Russia) as hostile invasion and ‘occupation’ by a foreign state, or the Moroccan administration and de facto annexation of the former Spanish (Western) Sahara, still contested by a section of the population represented by the Polisario Front. Similarly, following the de facto secession and independence of part of a state, often in the wake of a foreign military intervention such as in Northern Cyprus, territory may be more accurately described as ‘occupied’, rather than ‘annexed’ or ‘independent’, if the secession is not recognised by the United Nations or by other states, or if some parts of the civil population continue to resist and the authority of the de facto government and administration can only be maintained by the use or threat of armed force.
In other, more consensual cases when territory is placed by an occupier under the authority of a civilian administration, ‘regime change’ and the transition to an independent local administration may appear remarkably successful. Christine Haynes and Beatrice de Graaf have, for example, labelled the occupation of France from 1815-1818 by Britain, Russia, and Prussia, as the first ‘modern’ case of occupation, foreshadowing the Hague Regulations and the Geneva Convention of 1949, despite significant power and authority held not by a foreign military body but by the restored French monarchy. The purpose of this occupation was first, to secure payment of reparations agreed in the Second Treaty of Paris, and second, according to the British military commander, the Duke of Wellington, to give the French king ‘time to form a force of his own with which he can carry on his government’.
The treaty provided for 150,000 troops from the Allied powers to be stationed in France, but such a ‘transformative occupation’ – intended to secure a relatively smooth transition from the Napoleonic Empire to a restored monarchy – does not fit easily within the definition of (belligerent) occupation in Article 42. In this case, the territory occupied by the Allied troops was limited to garrisons along the north-eastern frontier, the authority possessed by the Allied troops over the local inhabitants was minimal, and it could also be argued that following the signature of the peace treaty the Allied military forces were no longer a ‘hostile’ army.
While the law of occupation might, therefore, be ill suited to capture the wider variety of cases that could plausibly be explored as instances of military occupation, one central feature that is of wider significance emerges from this particular approach: occupation involves the physical control of space by an outside force.
Occupation as Power without Sovereignty
The definition of occupation in international law, while in itself contested and much debated in recent years, is intended to demarcate the legal remit of an occupation, reinforce the prohibition of unilateral annexation and long-term domination, and put significant constraints on the power of occupiers. This renders its purpose, however, fundamentally distinct from the project of conceptualising military occupation as a distinctive regime type. As the above examples demonstrate, numerous historical cases do not fit into the definition of occupation as advanced in the Hague Regulations, but were nonetheless perceived by a significant portion of the local population as a form of occupation characterised by the external imposition of rule by force.
In order to include cases of military rule arising from conflict within as well as between states, and those that involve a degree of civilian administration as well as direct military rule by a ‘hostile army’, it would therefore appear necessary to adopt a broader conceptualisation. The second understanding of ‘occupation’ considered here is that of ‘power without sovereignty’, which builds on the framing of occupation in international law. It goes beyond it, however, by considering occupation not merely as a limited framework of duties and obligations, but as a regime type sui generis. Drawing on work by scholars including Peter Stirk and Eyal Benvenisti, Camilo Erlichman referred to this particular notion that has gained currency in political theory as ‘occupation, understood not as the taking of a territory in the form of conquest, but rather as the temporary control of a territory without the absorption of sovereignty rights’.
Approaching occupation as a political regime characterised by ‘power without sovereignty’ emphasises the differences between occupation and conquest followed by annexation. Occupation is assumed to be a temporary phenomenon. The rights of the former sovereign of the occupied territory are recognised, if only to the extent that formal renunciation of those rights and concession to the demands of the occupier have to be made by agreement, and agreement is subject to the threat of overwhelming force if withheld. At the same time, a regime that lacks sovereignty but nonetheless seeks to exercise political authority over foreign citizens will consequently also lack many of the instruments of a modern state. It cannot draw on the complex set of bureaucratic structures and procedures as well as the large number of trained personnel, all of which are essential to the running of a state. Nor can it seek to legitimise its decisions through elections and institutions. This renders occupation, as Peter Stirk has plausibly argued, a paradoxical system of rule because it comes into life through force, but is fundamentally weak and crippled by its combined lack of state capacity and legitimacy.
Defining occupation as ‘power without sovereignty’ also makes a useful distinction between occupation and empire, in that the imperial authority usually, if not always, claims sovereignty over territory incorporated within the empire. However, if it is assumed, as is currently the usual practice, that sovereignty over a territory lies with the people – in accordance with the principle of their right to self-determination which cannot be relinquished or alienated – annexation without the consent of the inhabitants of the territory is no longer a permitted option under international law. A state of ‘occupation’, on the other hand, can be claimed by a victor in war as a form of ‘power without sovereignty’ which is recognised under international law, and gives them de facto control over the territory without breaking the fundamental principle that sovereignty resides with the people.
In making no reference to the physical presence of a ‘hostile army’, ‘power without sovereignty’ includes cases in which the occupier does not exercise their authority through the direct use of armed force, but establishes or tolerates a dependent civilian administration, whose authority is maintained, in the last resort, by the use or threat of force by the occupying state. Conceptualising occupation in this way would appear to exclude cases of ‘occupation’ following armed conflict within states, when sovereignty over a territory may be claimed by both sides in a civil war, or by a military dictator.
This brings to the fore the extent to which perceptions as to what counts as an occupation and as sovereign rule can differ substantially between occupiers and occupied. This may be resolved through adding the simple qualification that if the sovereignty claimed by an occupier is not recognised by the occupied, the situation should still be perceived empirically as occupation. On this maximalist interpretation, any historical situation of foreign domination (and to some extent also internal rule that is seen by the population as illegitimate) could, in principle, count as an occupation if it is perceived as such by a significant number of the occupied, regardless of claims made by the occupier. As discussed by Joe Voncken, Luxembourg, for example, was annexed by the German Reich during the Second World War, but the great majority of the local inhabitants perceived this as an occupation.
Perceptions, therefore, matter in these different understandings of occupation. A state of occupation defined in the Hague Regulations as ‘territory actually placed under the authority of the hostile army’ can be determined and recognised by the international community as well as by international courts by examining the facts of the situation, independently of claims made by occupiers and occupied. Sovereignty, on the other hand, is a perception and a legal right subject to interpretation and contestation. Depending on the circumstances, sovereignty may be inherited (in a monarchy), assumed by law to rest with the people who elect their representatives (in a democracy), acquired by conquest and force of arms (in a dictatorship or the dependent territories of an empire), and recognised or denied by other nations. Sovereignty over a territory may be claimed, gained or lost, disputed, and perceived by the inhabitants of the territory as legitimate or illegitimate.
As a subject for academic research, ‘occupation’ can therefore be examined in relatively narrow legal terms, recognised and regulated by International Law and interpreted according to the judgements of international courts of law. But it can also be explored as a political, historical, and present-day phenomenon typified by ‘power without sovereignty’. This ruling system creates a dynamic power relationship between occupier and occupied, leads to an often paradoxical form of government that lacks the resources of a bureaucratic state, and provides the context within which social, political, economic, personal and cultural relationships develop and evolve.
Occupation as Foreign Rule Maintained by Force
The third definition of occupation considered here is that given in the Introduction to the edited volume Transforming Occupation in the Western Zones of Germany, in which, based on a historical approach, we wrote that ‘the defining feature of military occupation is the combination of foreign rule with the dependence, in the last resort, on the use or threat of force’.
The emphasis on foreign rule clearly excludes cases of occupation arising from civil war and conflict within states, unless that conflict is between two sides that perceive the other as ‘foreign’. ‘Foreign rule’ is a perception held by those subjected to that type of rule, both in terms of who or what may be considered to be ‘foreign’, and in terms of the extent of rule, which may be violent or relatively benevolent, direct or indirect. It is, therefore, the emphatic visibility of the ‘foreign’ quality of a military occupation, such as most typically through the public presence of the military and civilian personnel of the occupying state, that renders it fundamentally different from other forms of external intervention in a state, such as the influence exercised by international organisations or multinational companies.
Such an approach also broadens our understanding of occupation from a generally short-lived military context to include foreign rule by civilians that may continue for many years or even indefinitely. Military government may comprise the initial phase of occupation, followed by civilian administrators and the progressive devolution of power to local bodies, resulting eventually in the restoration of national sovereignty, but always associated with the continued presence of military troops from the ‘foreign’ power stationed on a near permanent basis in the ‘occupied’ territory.
In making no reference to sovereignty, the focus on ‘foreign rule’ also removes the problematic distinction between occupation and empire, highlighted by Jeremy Taylor. Historically, in the nineteenth and first half of the twentieth century, the term ‘occupation’ was applied in cases of war between mainly European, supposedly ‘civilised’ nations, where the conduct of hostile armies was believed to be limited and constrained by established customs, formalised as the laws of war. Above all, only Europeans were conceived as holders of sovereignty rights, whereas colonised people were portrayed as devoid of such rights owing to their presumably low level of development. As Yutaka Arai-Takashi has argued, the law of occupation was therefore shaped by an underlying racist logic that was deliberately limited in its application to European states. ‘Empire’, by contrast, applied to the seizure of territory, often considered to be terra nullius or ‘empty lands’ with no legitimate ruler, or ceded on diverse terms by local rulers to more powerful European (or North American) adversaries. In a post-colonial world, such a distinction appears entirely artificial, and in many respects needs to be understood as constructed to serve the interests of European imperial powers who did not want to see their control of territories outside Europe limited and constrained by international law.
In a broader sense, the key distinction embodied in a broad definition of occupation as rule by an authority that is perceived, by the occupied population, as foreign, is that between rule dependent on the use or threat of force, and rule by consent. As such, occupation regimes are born with what one might describe as a severe ‘legitimacy deficit’, irrespective of whether an occupier is initially welcomed or not by the local population. Through their external imposition, and in contradistinction to authoritarian regimes that have local origins, occupation regimes lack a form of rootedness within the deeper social, political, and economic structures of a state. This is not to argue that there cannot be popular consent during an occupation, nor that an occupier cannot enjoy a degree of legitimacy amongst the local population. Nor is it to say that domestic regimes are non-coercive: all forms of political rule are ultimately based on force or the threat thereof. It is, however, the coercive and alien nature of an occupation that is a permanent and oftentimes visible presence in this form of rule, and that cannot, in the long-term, be shrouded through formalised institutional structures and procedures.
This third understanding of occupation is, therefore, less concerned with the actual circumstances in which an occupation first arose, such as most typically as an outcome of war following conflict between hostile armies or as a result of the military defeat of a former sovereign state. Conversely, this conceptualisation centres on the means by which foreign rule is maintained – by the use or threat of force, as opposed to by consent. It also privileges the perceptions of the occupied over those of the occupiers and of the international community.
In doing so, it also provides an insight into when a military occupation may be considered to have ended. This usually happens in one of two ways: either when the occupier is no longer capable of applying sufficient force to maintain their rule and is ousted by internal or external forces (i.e. ‘liberation’); or alternatively, in the often contested context of what has been referred to as ‘transformative occupation’, the stated purpose of which, in line with Adam Roberts’ definition, is ‘to change states that have failed, or have been under tyrannical rule’. In such instances, an occupation ends when a new or restored regime (sometimes installed by an occupier) has acquired sufficient legitimacy to rule by consent, and is no longer dependent on the presence of foreign military and security forces, and the concomitant application of force by the foreign occupier.
Conclusion
The three understandings of occupation examined here are not mutually exclusive: they simply place their respective emphases on different features of the phenomenon of occupation, in line with the concerns and epistemological objectives of the three disciplines from which they have emerged: law, politics, and history. In our view, these three approaches can be combined productively to arrive at a fuller understanding of the intricate phenomenon of occupation. Such a combination can also enhance our understanding of other related forms of government such as territory occupied and controlled by a ‘hostile army’ during a civil war, or by an imperial power that depends on the use of force to maintain its authority in its colonies, protectorates, or other dependent territories.
In drawing comparisons between different cases of occupation, however, it is important to bear in mind that all three of these understandings presuppose different answers to the fundamental question of who decides what an occupation actually is. As we have argued, occupation is both a legal reality regulated by international law and a set of social perceptions, which may differ according to whether they are held by the occupiers who rule or by the occupied population who are ruled. Perceptions are subject to contestation and disagreement. In deciding whether a specific case is best described as an occupation, scholars invariably need to make choices as to the perspective they want to privilege, the context in which they place the occupation, and the primary sources they will consequently draw on. The disputed nature of occupation is, in the final analysis, not a hindrance to its study, but part of the essence of the phenomenon.
Photo credits:
Cover picture: The Nanking Road Shanghai, painting by Jim Morris. Chinese civilians watch a procession of Allied soldiers and sailors with flags and banners march along the Nanking Road, Shanghai, through a white Chinese arch.
Source: Imperial War Museum Image: IWM (Art.IWM ART LD 5875)
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