“Military occupation”的意思、由来-开放百科全书

While an occupant may setup a formal military government in the occupied territory to facilitate its administration, it is not a necessary precondition for occupation.^[8]

The rules of occupation are delineated in various international agreements, primarily the Hague Convention of 1907, the Geneva Conventions of 1949, as well as established state practice. The relevant international conventions, the International Committee of the Red Cross (ICRC) Commentaries, and other treaties by military scholars provide guidelines on such topics as rights and duties of the occupying power, protection of civilians, treatment of prisoners of war, coordination of relief efforts, issuance of travel documents, property rights of the populace, handling of cultural and art objects, management of refugees, and other concerns which are very important both before and after the cessation of hostilities. A country that establishes an occupation and violates internationally agreed upon norms runs the risk of censure, criticism, or condemnation. In the current era, the practices of occupations have largely become a part of customary international law, and form a part of the laws of war.

Occupation and the laws of war

From the second half of the 18th century onwards, international law has come to distinguish between the occupation of a country and territorial acquisition by invasion and annexation,^[9] the difference between the two being originally expounded upon by Emerich de Vattel in The Law of Nations (1758).^[9] The clear distinction has been recognized among the principles of international law since the end of the Napoleonic wars in the 19th century.^[9] These customary laws of occupation which evolved as part of the laws of war gave some protection to the population under the occupation of a belligerent power.{{citation needed|date=July 2017|reason=It gave some protection to the states ownership (princes of the territory). It gave next to no protection to the inhabitance.}}

The Hague Convention of 1907 codified these customary laws, specifically within "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State".^[10] The first two articles of that section state:

In 1949 these laws governing occupation of an enemy state's territory were further extended by the adoption of the Fourth Geneva Convention (GCIV). Much of GCIV is relevant to protected persons in occupied territories and Section III: Occupied territories is a specific section covering the issue.

GCIV emphasised an important change in international law. The United Nations Charter (June 26, 1945) had prohibited war of aggression (See articles 1.1, 2.3, 2.4) and GCIV Article 47, the first paragraph in Section III: Occupied territories, restricted the territorial gains which could be made through war by stating:

Article 49 prohibits the forced mass movement of people out of or into occupied state's territory:

Protocol I (1977): "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" has additional articles which cover occupation but many countries including the U.S. are not signatory to this additional protocol.

In the situation of a territorial cession as the result of war, the specification of a "receiving country" in the peace treaty merely means that the country in question is authorized by the international community to establish civil government in the territory. 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.

"Military government continues until legally supplanted" is the rule, as stated in Military Government and Martial Law, by William E. Birkhimer, 3rd edition 1914.

Beginning of the occupation

Article 42 of the 1907 Hague Convention on Land Warfare specifies that a "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army." The form of administration by which an occupying power exercises government authority over occupied territory is called military government. Neither the Hague Conventions nor the Geneva Conventions specifically define or distinguish an act of "invasion". Article 2 of the Geneva Conventions expanded on this to include situations in which no armed resistance is encountered.^[11]

There does not have to be a formal announcement of the beginning of a military government, nor is there any requirement of a specific number of people to be in place, for an occupation to commence. Birkhimer writes:

The occupying power

The terminology of "the occupying power" as spoken of in the laws of war is most properly rendered as "the principal occupying power", or alternatively as "the occupying power". This is because the law of agency is always available (When the administrative authority for the occupation of particular areas is delegated to other troops, a "principal -- agent" relationship is in effect).^[12]

Because the law of agency is a very general pattern, primarily applicable in this case as the means of regulating the relationships between the said "powers", but a question however in which considerations of logistics are sometimes to be taken in consideration, that definition is not always applicable outside of those contexts which can be analysed by analogy as related to warlording, even though it does relate more generally to all possible types of military coalitions.

In most contexts determined by the application of the defined and modern laws of war, delegation to agencies generally tends to relating to civilian organizations. Juridical considerations like the above remain in the other cases merely consensual between the said powers. For example, in 1948 the U.S. Military Tribunal in Nuremberg states: {{quote|In belligerent occupation the occupying power does not hold enemy territory by virtue of any legal right. On the contrary, it merely exercises a precarious and temporary actual control. This can be seen from Article 42 of the Hague Regulations which grants certain well limited rights to a military occupant only in enemy territory which is 'actually placed' under his control.^[13]}}

End of occupation

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".^[14]

For the situation where no territorial cession is involved, the occupation ends with the coming into force of the peace settlement.

In the situation of a territorial cession, there must be a formal peace treaty. However, the occupation does not end with the coming into force of the peace treaty.

Hence, at the most basic level, the terminology of "legally supplanted" is interpreted to mean "legally supplanted by a civil government fully recognized by the national (or "federal") government of the principal occupying power".

Examples of occupations

In most wars some territory is placed under the authority of the hostile army. Most occupations end with the cessation of hostilities. In some cases the occupied territory is returned and in others the land remains under the control of the occupying power but usually not as militarily occupied territory. Sometimes the status of presences is disputed by a party to the situation. The largest extending territories under military occupation came into existence as the outcome of World War I and World War II:

Occupation is usually a temporary phase, preceding either the handing back of the territory, or its annexation. A significant number of post-1945 occupations have lasted more than two decades such as the occupations of Namibia by South Africa and of East Timor by Indonesia as well as the ongoing occupations of Northern Cyprus by Turkey and of Western Sahara by Morocco.^[15] The world's longest ongoing occupation, and the longest in modern times by one single occupying power, is Israel’s occupation of the West Bank, including East Jerusalem (1967–present).^[16] Other prolonging belligerent occupations that have been alleged include the occupation by the United Kingdom of the Falkland Islands/Malvinas (1833-present) which Argentina claims this as sovereign territory, of Tibet by China (1950-present), and of the Kingdom of Hawaii by the United States (1893-present). The War Report makes no determination as to whether belligerent occupation is occurring in these cases.^[17]

The most recent cases of occupation, which took place in the 21st century are the:

See also

References

1. ^A Roberts. Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967 - Am. J. Int'l L., 1990, p. 47.
2. ^¹Eyāl Benveniśtî. The international law of occupation. Princeton University Press, 2004. {{ISBN|0-691-12130-3}}, {{ISBN|978-0-691-12130-7}}, p. xvi
3. ^Eran Halperin, Daniel Bar-Tal, Keren Sharvit, Nimrod Rosler and Amiram Raviv. Socio-psychological implications for an occupying society: The case of Israel. Journal of Peace Research 2010; 47; 59
4. ^During civil wars, the districts occupied by rebels are considered to be foreign.Military Government and Martial Law LLMC, p. 21. [https://books.google.com/books?id=5Glpdj7x1xEC&lpg=PP1&pg=PT30#v=onepage&q&f=false]
5. ^{{cite web|url=http://www.elac.ox.ac.uk/downloads/ELAC%20Feb%202012%20Cecile%20Fabre%20Belligerent%20Occupation%20Handout.pdf|title=Living with the enemy: the ethics of belligerent occupation|first=Cécile|last=Fabre}}
6. ^David M. Edelstein. Occupational Hazards: Why Military Occupations Succeed or Fail. Journal of Peace Research 2010; 47; 59
7. ^{{cite book|title=The Politics of Military Occupation|first=Peter|last=Stirk|url=https://books.google.co.uk/books?id=4951aoUL5nEC&pg=PA44#v=onepage&q&f=false|quote=The significance of the temporary nature of military occupation is that it brings about no change of allegiance. Military government remains an alien government whether of short or long duration, though prolonged occupation may encourage the occupying power to change military occupation into something else, namely annexation|page=44|publisher=Edinburgh University Press|year= 2009|isbn=9780748636716}}
8. ^{{cite journal|first=Adam|last=Roberts|title=What is a Military Occupation?|year=1985|journal=British Yearbook of International Law|volume=55|pages=249–305|doi=10.1093/bybil/55.1.249}}
9. ^¹²{{cite journal|title=Property and the Law of Belligerent Occupation: A Reexamination|first=Babaloba|last=Cole|journal=World Affairs|volume=137|issue = 1|pages=66–85|year=1974|jstor = 20671544}}
10. ^Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State source The Avalon Project at the Yale Law School
11. ^{{cite article|title=Determining the beginning and end of an occupation under international humanitarian law|first=Tristan|last=Ferraro}}
12. ^{{cite book |author=Anonymous |chapter-url=http://www.taiwanbasic.com/ebooks/trelation/chapter-5/ |chapter=Chapter 5 – Definitions of Important Terminology and Concepts Related to Territorial Cessions |title=The True Legal Relationship between Taiwan & the USA |publisher=www.taiwanbasic.com |access-date=13 December 2013}}{{Unreliable source?|date=December 2013}}
13. ^{{cite book|title=The Law of Occupation: Continuity and Change of International Humanitarian Law|author=Yutaka Arai Takahashi|page=7|year=2009|isbn=978-90-04-16246-4 }}
14. ^{{cite book|author=Eyal Benvenisti|title=The International Law of Occupation|url=https://books.google.com/books?id=f19hVb54_s8C|date=23 February 2012|publisher=OUP Oxford|isbn=978-0-19-163957-9|page=56|quote=The conditions that define when occupation begins also identify when it ends. Obviously, occupation can end in a number of ways: with the 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.}}
15. ^{{cite book|title=The Role of National Courts in Applying International Humanitarian Law|first=Sharon|last=Weill|url=https://books.google.co.uk/books?id=bDnnAgAAQBAJ&pg=PA22#v=onepage&q&f=false|page=22|date=2014|publisher=Oxford University Press|isbn=9780199685424|quote=Although the basic philosophy behind the law of military occupation is that it is a temporary situation modem occupations have well demonstrated that rien ne dure comme le provisoire A significant number of post-1945 occupations have lasted more than two decades such as the occupations of Namibia by South Africa and of East Timor by Indonesia as well as the ongoing occupations of Northern Cyprus by Turkey and of Western Sahara by Morocco. The Israeli occupation of the Palestinian territories, which is the longest in all occupation's history has already entered its fifth decade.}}
16. ^The majority of the international community (including the UN General Assembly, the United Nations Security Council, the European Union, the International Criminal Court, and the vast majority of human rights organizations) considers Israel to be occupying Gaza, the West Bank and East Jerusalem.
The government of Israel and some supporters have, at times, disputed this position of the international community. For more details of this terminology dispute, including with respect to the current status of the Gaza Strip, see International views on the Israeli-occupied territories and Status of territories captured by Israel.
See for example:
* {{Cite book|title = Courting Conflict: The Israeli Military Court System in the West Bank and Gaza|last = Hajjar|first = Lisa|publisher = University of California Press|date = 2005|isbn = 978-0520241947|location = |pages = 96|url=https://books.google.co.uk/books?id=mcjoHq2wqdUC&pg=PA96#v=onepage&q&f=false|quote= The Israeli occupation of the West Bank and Gaza is the longest military occupation in modern times.}}
* {{cite journal|first=Perry|last=Anderson|authorlink=Perry Anderson|title=Editorial: Scurrying Towards Bethlehem|date=July–August 2001|journal=New Left Review|volume=10|url=https://newleftreview.org/article/download_pdf?id=2330|quote=...longest official military occupation of modern history—currently entering its thirty-fifth year}}
* {{cite book|first=Saree|last=Makdisi|authorlink=Saree Makdisi|url=https://books.google.co.uk/books?id=2dBM3Ago2BAC&pg=PA299#v=onepage&q&f=false|quote=...longest-lasting military occupation of the modern age|title=Palestine Inside Out: An Everyday Occupation|publisher=W. W. Norton & Company|date=2010|isbn=9780393338447}}
* {{cite journal|volume=94|issue=885|pages=207–236|date=Spring 2012|journal=International Review of the Red Cross|title=The law of belligerent occupation in the Supreme Court of Israel|first=David|last=Kretzmer|authorlink= David Kretzmer|doi=10.1017/S1816383112000446|url=https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf|quote=This is probably the longest occupation in modern international relations, and it holds a central place in all literature on the law of belligerent occupation since the early 1970s}}
* {{cite book|first=Edward|last=Said|authorlink=Edward Said|url=https://books.google.co.uk/books?id=SUt6EAoH0xgC&pg=PA33#v=onepage&q&f=false|quote=These are settlements and a military occupation that is the longest in the twentieth and twenty-first century, the longest formerly being the Japanese occupation of Korea from 1910 to 1945. So this is thirty-three years old, pushing the record.|title=Culture and Resistance: Conversations with Edward W. Said|publisher=Pluto Press|date=2003|isbn=9780745320175|page=33}}
*{{citation|title=The Justice of Occupation|quote=Israel is the only modern state that has held territories under military occupation for over four decades|first=Ra'anan|last=Alexandrowicz|date=24 January 2012|publisher=The New York Times|url=https://www.nytimes.com/2012/01/25/opinion/the-justice-of-occupation.html?_r=0}}
17. ^The War Report: Armed Conflict in 2014 (2015) reports (p. 24), "Other belligerent occupations that have been alleged include the occupation by the United Kingdom of the Falkland Islands/Malvinas (Argentina claims this as sovereign territory), of Tibet by China, and of the Hawaiian Kingdom by the United States. The War Report makes no determination as to whether belligerent occupation is occurring in these cases."