Belligerent Occupation Under International Law: Legal Nature, Consequences, New Tendencies

Abstract

The article discusses international legal aspects of belligerent occupation. It presents legal underpinnings
of belligerent occupation, its consequences for occupying powers and local inhabitants,
as well as new tendencies connected with international administration of territories and responsibility
of the Security Council for maintenance of peace and security.
There is a difference between belligerent occupation and so-called “pacific” occupation. The
former refers to a situation where the forces of one or more States exercise effective control over
a territory of another State without its volition. The latter is based on the consent of territorial sovereign.
The regime of belligerent occupation does not depend on the existence of a state of war, nor on
the armed resistance to the occupant, which is today especially proved by the status of Palestinian
territories. Belligerent occupation does not transfer territorial sovereignty to the occupying power.
That is why, international law regulates the interrelationships between the occupying power, the
ousted government, and the local inhabitants for the duration of the occupation. International humanitarian
law authorizes the occupant to safeguard its interests while administering the occupied
area, but also imposes obligations on the occupant to protect life and property of the inhabitants and
to respect the legally protected interests of the ousted government, including its cultural heritage.
The author argues that the regime of belligerent occupation can be applied to UN post-conflict
administrations solely de facto. In this respect, a new class of problems has been created. Those
problems are today regulated by a new body of law – jus post bellum.