The Politics of Military Occupation

By Peter M. R. Stirk | Go to book overview

Chapter 5
Occupation and Obligation

As suggested in the discussion of the definition of military occupation there is a prima facie case that inhabitants of occupied territory are under an obligation to obey the occupying authorities. There is indeed explicit, if qualified, reference to this idea in the current British Manual of the Law of Armed Conflict:

While the orders of the authorities of an occupying power may be lawful,
and while the occupant is entitled to require obedience to lawful orders,
it does not necessarily follow that failure to comply with such orders is
illegal under the law of armed conflict. However, the inhabitants are liable
for punishment by the occupying power should they disobey legislation,
proclamations, regulations, or orders properly made by that power.1

Yet, despite the recurrent appearance of this expectation of obedience in the law and practice of military occupation, explicit attention to the problems associated with it has been far more fitful than that devoted to the problem of political obligation in general.2 So much is this the case that it was possible to identify an article by Richard Baxter published in 1950 as ‘pathbreaking’; to which it might be added that the path has remained largely untrodden.3 That is hardly surprising for Baxter’s article was a condemnation of the doctrine. Neglect of the correlative concept of the authority of the occupier has not been as marked, though here too wider considerations, in this case the tendency to confound authority with power, have contributed to the neglect.4 The reason for this is not difficult to detect. As a relatively rare study of the authority of international administrations has put it, such authority ‘seems to be at odds with contemporary conceptions of legitimate government. While the legitimacy of government is rooted in notions of self-determination and increasingly democracy, international administrations, at least temporarily, deny both to people over whom they govern’.5 Such sentiments can be strengthened where they are linked with notions of resistance to military force, especially if linked to either claims to self-determination or the establishment of democratic governance. The presumption that

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