original URL --
http://www.au.af.mil/au/awc/awcgate/sam/bellig_occup_burgess.pdf

alternate URL --
http://www.taiwanbasic.com/treaties/bellig/bellig_occup_burgess.pdf

---

  Commentary on the monograph  

(Page numbers referred to herein are as given by the author Major Christopher Todd Burgess inside the monograph.)

  Law of Belligerent Occupation

Pages 3 to 7 discuss the Law of Belligerent Occupation and have a good overview, including introduction, history, and definitions. The footnotes also give some good references.

One item of particular note is footnote 12 on page 5, which refers to an article in Military Law Review 156 (June 1998), p. 224-255, entitled "The United States and the Development of the Laws of Land Warfare," by Captain Grant R. Doty, available at http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277C79%7E1.pdf, which may also be accessed from the main page of the Military Law Review (MLR) website at http://www.loc.gov/rr/frd/Military_Law/Military-Law-Review-home.html.

I reviewed this June 1998 article in the MLR, and found that it is quite historical in nature. One quote by Captain Doty on page 225 was interesting.

p. 225 . . . given that the laws of land warfare are based largely on customary law, they gain strength from evidence of "both extensive and virtually uniform" practice.

  Five Pillars

On page 7, the author discusses the five essential tasks which must be accomplished during the occupation mission.

The five mission essential tasks set forth in the Hague and Geneva Conventions are as follows: (1) Restore and ensure public order and safety, (2) provide medical care, supplies and subsistence, (3) ensure the care and education of children, (4) respect private property and properly manage public property, and (5) provide for the security of the occupying force to facilitate mission accomplishment.

A discussion and expansion of these five elements are given on the following pages, along with a Chart on page 16 in which these are referred to as the "Five Pillars." An additional Chart on page 56 further expands this analysis.

In regard to Taiwan, and the situation beginning late October 1945, it would appear that the United States has largely failed to accomplish tasks 1 through 4.



  Structure of Military Government

From the viewpoint of the military occupation of Germany, the Structure of Military Government is discussed beginning on page 18. This leads into a discussion of sovereignty.

The notion of military occupation being an exercise of sovereignty (as noted in Madsen v. Kinsella, 343 U.S. 341 (1952), citing a passage from Colonel William Winthrop's Military Law and Precedents) is also affirmed by the following quote on page 20 --

In 1920, Colonel Irwin L. Hunt, Officer in Charge of Civil Affairs for Third Army after World War I stated "The American army of occupation lacked both training and organization to guide the destinies of the nearly one million civilians whom the fortunes of war had placed under its temporary sovereignty."

On page 44, in discussing the situation of military occupation in Iraq, the author states

... it is important that the Iraqis see a timeline with specific events leading restoration of sovereignty.

  FM 27-5 "Military Government and Civil Affairs"

This US Army Field Manual is mentioned on pages 21, 52, and 53.

(This Field Manual is available on the internet.) I reviewed the Dec. 22, 1943 revised edition and found that it is quite technical. The author critiques it as follows:

The scope of FM 27-5 differs dramatically from its current doctrinal counterparts.(FT 183) Field Manual 27-5 specifically laid out the scope and purpose of civil affairs and military government activities, organization, personnel, operations orders, proclamation, and tribunals. Where current doctrine only starts to sketch the concept of what an occupation is, FM 27-5 demonstrates the application of legally required occupation tasks on the battlefield including medical care, government, administration, and security. Unlike the lack of current doctrine on occupation, Field Manual 27-5 provided one reference source for anyone needing information on the conduct of an occupation.

FT 183: In 1958, FM 41-5, Joint Manual of Civil Affairs/Military Government superceded and removed some of the detail that FM 27-5 had. In 1962, FM 41-10 Civil Affairs Operations replaced FM 41-5 and there was further removal of the specifics for military government. By the next revision in 1969, military government became even further indistinct.

The following definitions from page 1 of FM 27-5 are relevant for our current research:

Military Government. The term "military government" is used in this manual to describe the supreme authority exercised by an armed force over the lands, property, and the inhabitants of enemy territory, or allied or domestic territory recovered from enemy occupation, or from rebels treated as belligerents. It is exercised when an armed force has occupied such territory, whether by force or by agreement, and has substituted its authority for that of the sovereign or a previous government. Sovereignty is not transferred by reason of occupation, but the right of control passes to the occupying force, limited only by international law and custom. The theater commander bears full responsibility for military government. He is, therefore, usually designated as military governor, but may delegate both his authority and title to a subordinate commander. Occupied Territory. The term "occupied territory" is used to mean any area in which military government is exercised by an armed force. It does not include territory in which an armed force is located but has not assumed supreme authority.

  Who is in Charge?

On page 29, the crucial issue of Who is in Charge? is discussed. The following description is noteworthy:

The last lesson from the occupation of Germany demonstrated that the question over who is in charge of an occupation is not a new one and offers one possible solution. In the case of Germany, President Roosevelt settled the debate over who would have authority for military government. Initially, Department of State and Department of the Interior officials wanted less of a military monopoly on the control of the schooling and operations. However, President Roosevelt's final ruling came in November, 1943, when he stated, "Although other agencies are preparing themselves for the work that must be done in connection with relief and rehabilitation of liberated areas, it is quite apparent that if prompt results are to be obtained the Army will have to assume the initial burden." Continuing, he assigned to the Army the planning and execution of civil relief and rehabilitation "until civilian agencies are prepared to carry out the longer range program." Although an issue that occurred in World War II, the debate of who should be in charge of an occupation was also seen during the Operation IRAQI FREEDOM. The same debate occurred between the State Department and the Department of Defense. Additionally, President Roosevelt's ruling 1943 set a precedent that should be still followed today.

  Education

Educational issues for the occupied territory are discussed on page 42, and continued on pages 45 to 46 under the heading of "Debaathification."

In Taiwan, there is a strong need for "Desinification."



  FM 41-10 "Civil Affairs Operations"

This US Army Field Manual is discussed in some detail on page 51. (This Field Manual is available on the internet.) The author notes that

Field Manual 41-10 marks the separation between civil administration in friendly territory and civil administration in occupied territory. In both cases FM 41-10 offers broad guidance.

Note: After cession from Japan on April 28, 1952, Taiwan is no longer "enemy territory," it is "friendly territory."



  FM 27-10 "the Law of Land Warfare"

This US Army Field Manual is critiqued on page 52. The author states:

Field Manual 27-10, The Law of Land Warfare should also be examined. This document was created after World War II and the approval of the Geneva conventions of 1949. Field Manual 27-10 offers the applicable international law and the United States' interpretation of those laws. Chapter 6 is dedicated towards occupation and outlines the law very well. However, the manual focuses on the law and does not describe how to apply that law on the battlefield or occupied territory. Nonetheless, there are two benefits in FM 27-10. It is grounded in the law and makes specific references throughout the manual to the Geneva and Hague protocols, which were approved out of the aftermath of World War II. Additionally, it offers the Army interpretation of those international laws providing guidance on what tasks must be done. Indeed, FM 27-10 is the only current doctrine that offers any substantive information on the required tasks to execute in an occupation. Conversely, none, including FM 27-10, of the current doctrine presents substantive guidance on how to execute an occupation. Obviously, there are glaring deficiencies in current occupation doctrine. Other than FM 27-10, current doctrine offers nothing on how to conduct an occupation.