The Department of Defense Manual: Occupation Chapter
Forthcoming in Michael A. Newton (ed), The United States Department of Defense Law of War Manual: Commentary and Critique (Cambridge University Press)
Hebrew University of Jerusalem International Law Forum Working Series 07-17
33 Pages Posted: 3 Aug 2017 Last revised: 25 Aug 2017
Date Written: August 1, 2017
This chapter examines the occupation chapter in the US Department of Defence’s 2015 Law of War Manual (as updated in June 2016). In particular, it considers the implications of the Manual for transformative measures, in light of the few statements pertaining directly to such measures, and of the general tenor of the Manual. The chapter considers these issues by reference to both doctrine and practice cited by the Manual, also evaluating their persuasive power. First, it notes that the Manual’s reading of the occupying power’s authority is ambiguous. On the one hand its explicit provisions do not stray far from the traditional iterations of the conservationist principle; on the other hand, the Manual utilizes various techniques to suggest that the discretion of the occupying power may be very wide. Second, this chapter demonstrates that the Manual adopts a very narrow view of what constitutes occupation, leaving great leeway for foreign forces acting in non-sovereign territory. This chapter concludes that considered in totality, the Manual does not explicitly endorse the transformative project, but implicitly goes a significant way towards accommodating it, at the expense of the conservationist principle underlying the law of occupation.
Keywords: Occupation, Transformative Measures, Hostility, Consent, Liberation, Friendly Territory
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