Ukraine Symposium – The Law of Belligerent Occupation


| Mar 8, 2023

Belligerent occupation

The ongoing conflict in Ukraine has raised important and timely issues regarding the application, implementation, and enforcement of the law of armed conflict. Particularly relevant, is the law of occupation. Unfortunately, this discrete subset of the law of armed conflict is often shrouded in myth, misconstrued, and inevitably has a pejorative connotation in public opinion (Dinstein, The International Law of Belligerent Occupation, p. 1; Sassòli, International Humanitarian Law, p. 304). 

The most persistent and common misunderstanding is that occupation is an anomaly in warfare. It is not. Although there have been many occupations since the Second World War, the most well-known and scrutinized examples have been the occupation of Iraq principally by the United States and the United Kingdom beginning in 2003 and Israel’s occupation of Arab territories starting in 1967 (Dinstein, p. 13-16). Russia’s occupation of portions of Ukraine, beginning as early as 2014 with its occupation of Crimea, highlights not only the continued relevance and importance of this area of law but also reflects egregious violations of its fundamental norms by Russia, reminiscent of the horrors that occurred in occupied territories in the Second World War.

Legal Thresholds

Provisions of the law of belligerent occupation are embodied in treaties and customary international law. Most notably, it is codified in Articles 42-56 of the 1907 Hague Regulations and Articles 47-78 of the 1949 Fourth Geneva Convention.  Other law of armed conflict treaties address aspects of the law of occupation, including the 1977 Additional Protocol I and the 1954 Hague Cultural Property Convention. Occupation law is also fleshed out further in military regulations, policy, and judicial opinions. Finally, international human rights law is applicable and relevant to occupations.

The portions of the Hague Regulations and the Fourth Geneva Convention addressing occupations emphasize different underlying purposes. Formulated before two world wars, the Hague Regulations focus on property rights and the sovereignty of States. The Fourth Geneva Convention, adopted in the aftermath of the atrocities committed in occupied territories in the Second World War, rewrote, expanded, and transformed the law of occupation, emphasizing humanitarian aims. 

The first critical thresholds of application of the law of occupation are Articles 42 and 43 of the Hague Regulations. Article 42 provides the trigger and scope of occupation law. Specifically, it provides that territory is occupied when “it is actually placed under the authority of the hostile army.” Thus, the legal regime of occupation law is triggered once an invading force establishes effective control over all or part of its enemy territory, thereby implicating “a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory.” (U.S. Law of War Manual, p. 771).

The existence of an occupation is a matter of fact. Characterizations by the occupying or occupied powers are not controlling. The scope of occupation is limited to the territory where authority has been established and can be exercised. By contrast, Article 43 provides as follows:

[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Put differently, the law of occupation rests on the fundamental premise that an occupation is a temporary arrangement, and any alteration of the existing order should be minimal.

Another key threshold in applying the law of occupation is found in common Article 2 (CA 2) of the Fourth Geneva Convention, which provides that the Convention shall apply to all cases of partial or total occupation.Considering the events of the Second World War, with their disastrous consequences for civilians, the Fourth Geneva Convention was the first multilateral treaty devoted to protecting the civilian population. Before 1949, the Geneva Conventions were chiefly concerned with combatants who became hors de combat.

Notably, the Fourth Geneva Convention does not invalidate the Hague Regulations on occupation but supplements them. If one conceives of the law of occupation as a trusteeship (which some respected commentators reject because it is not a relationship built on trust), the Fourth Geneva Convention makes civilians and the civilian population the primary beneficiaries of the trust. Article 27 of the Fourth Geneva Convention specifies safeguards for protected persons in occupied territories. They are, in part, as follows:

[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.  They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

The Situation in Ukraine

In applying Hague IV, Article 42 and CA 2 standards to Russia’s occupation of Ukraine, distinct geographical and temporal places and periods are relevant. The first period began in March 2014 when a combination of Russian regular armed forces and unidentified operatives – so-called “little green men” — occupied territory of Ukraine on the Crimean Peninsula.  That is, the armed forces of Russia were physically present on Ukrainian territory, without consent, exercising authority, while displacing the governmental authorities. The second period began in February 2022 when Russian armed forces invaded and occupied large territories in south and east Ukraine. Additionally, for a relatively brief period of time after the initial invasion, Russian forces-controlled areas in northern Ukraine near Kyiv and Kharkiv. Finally, it is important to note that some of the above areas have been and continue to be controlled by Russian proxies. 

It is almost impossible to overstate the scale and scope of Russia’s egregious violations of the law of occupation in Ukraine. A particularly graphic illustration of Russia’s malicious violence occurred in Bucha, a small city several miles northwest of Ukraine’s capital Kyiv.  Russian forces occupied Bucha for a short time after their initial invasion.  Ultimately, Russian troops were forced to withdraw from Bucha in response to a Ukrainian counteroffensive. During their control of Bucha, video evidence strongly suggested that Russian paratroopers summarily executed a group of Ukrainian captives. 

Once Ukrainian Forces liberated Bucha, evidence quickly mounted that it was a landscape of horrors. In brief, “[w]hen a defeated and demoralized Russian Army finally retreated, it left behind a grim tableau: bodies of dead civilians strewn on streets, in basements or in backyards, many with gunshot wounds to their heads, some with their hands tied behind their backs.”  Satellite images revealed what appears to be a mass grave in Bucha with the remains of nearly 300 people. Given the larger area and the length of the occupation in eastern Ukraine by Russian forces, the severity and magnitude of abuses of the civilian population most likely will exceed Bucha and other areas around Kyiv.  

Additionally, it has been alleged that Russia conducted unlawful transfers and deportations of Ukrainian nationals in violation of the law of occupation. Some reports put the number forcibly deported between 900,000 and 1.6 million, including 260,000 children. Russia has acknowledged that 1.5 million Ukrainians are in Russia but claims they were evacuated for safety.

In a report published in 2023 by the Humanitarian Research Lab at Yale School of Public Health, Russia is alleged to be operating a large-scale systematic network of camps and other facilities that have held 6,000 Ukrainian children within Russian-occupied Crimea and mainland Russia (with some being in Siberia and along Russia’s far eastern Pacific coast). Among the purposes of the facilities is to re-educate the Ukrainian children to make them more pro-Russian in their personal and political views. Russia’s deportations of Ukrainians violates a vital tenet of the law of occupation, Article 49 of the Fourth Geneva Convention, which provides that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” 

In addition to the above two examples, there are other blatant Russian violations of occupation law, including efforts to annex Russian-occupied territories in violation of Article 43 of the Hague Regulations. In the fullest of time, Russia’s violations of the law of occupation will come into more precise focus, thereby reinforcing its importance to the normative framework regulating warfare and its aftermath.   


Brigadier General (ret.) David A. Wallace is the United States Naval Academy Class of 1971 Distinguished Military Professor of Law & Leadership. He is also a Professor Emeritus United States Military Academy, where he previously served as the Professor & Head, Department of Law.

The views expressed here are the author’s personal views.  They do not necessarily reflect those of the Department of Defense, the United States Navy, the United States Naval Academy, or any other department or agency of the United States Government.  The analysis here stems from his academic research of publicly available sources, not protected operational information.


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Symposium Intro: Ukraine-Russia Armed Conflict

by Sean WattsWinston WilliamsRonald Alcala

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Russia’s “Special Military Operation” and the (Claimed) Right of Self-Defense

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February 28, 2022

Legal Status of Ukraine’s Resistance Forces

by Ronald Alcala and Steve Szymanski

February 28, 2022

Cluster Munitions and the Ukraine War

by William H. Boothby

February 28, 2022

Neutrality in the War against Ukraine

by Wolff Heintschel von Heinegg

March 1, 2022

The Russia-Ukraine War and the European Convention on Human Rights

by Marko Milanovic

March 1, 2022

Deefake Technology in the Age of Information Warfare

by Hitoshi Nasu

March 1, 2022

Ukraine and the Defender’s Obligations

by Eric Jensen

March 2, 2022

Are Molotov Cocktails Lawful Weapons?

by Sean Watts

March 2, 2022

Application of IHL by and to Proxies: The “Republics” of Donetsk and Luhansk

by Marco Sassòli

March 3, 2022

Closing the Turkish Straits in Times of War

by Raul (Pete) Pedrozo

March 3, 2020

The Abuse of “Peacekeeping”

by Alexander Gilder

March 3, 2022

Prisoners of War in Occupied Territory

by Geoff Corn

March 3, 2022

Combatant Privileges and Protections

by Laurie R. Blank

March 4, 2022

Siege Law

by Sean Watts

March 4, 2022

Russia’s Illegal Invasion of Ukraine & the Role of International Law

by Michael Kelly

March 4, 2022

Russian Troops Out of Uniform and Prisoner of War Status

by Chris Koschnitzky and Michael N. Schmitt

March 4, 2022

On War

by Andrew Clapham

March 5, 2022

Providing Arms and Materiel to Ukraine: Neutrality, Co-belligerency, and the Use of Force

by Michael N. Schmitt

March 7, 2022

Keeping the Ukraine-Russia Jus ad Bellum and Jus in Bello Issues Separate

by Rob Mclaughlin

March 7, 2022

The Other Side of Civilian Protection: The 1949 Fourth Geneva Convention

by Jelena Pejic

March 7, 2022

Special Forces, Unprivileged Belligerency, and the War in the Shadows

by Ken Watkin

March 8, 2022

Accountability and Ukraine: Hurdles to Prosecuting War Crimes and Aggression

by Lauren Sanders

March 9, 2022

Remarks on the Law Relating to the Use of Force in the Ukraine Conflict

by Terry D. Gill

March 9, 2022

Consistency and Change in Russian Approaches to International Law

by Jeffrey Kahn

March 9, 2022

The Fog of War, Civilian Resistance, and the Soft Underbelly of Unprivileged Belligerency

by Gary Corn

March 10, 2022

Common Article 1 and the Conflict in Ukraine

by Marten Zwanenburg

March 10, 2022

Levée en Masse in Ukraine: Applications, Implications, and Open Questions

by David Wallace and Shane Reeves

March 11, 2022

The Attack at the Zaporizhzhia Nuclear Plant and Additional Protocol I

by Tom Dannenbaum

March 13, 2022

The Russia-Ukraine War and the Space Domain

by Timothy GoinesJeffrey BillerJeremy Grunert

March 14, 2022

Fact-finding in Ukraine: Can Anything Be Learned from Yemen?

by Charles Garraway

March 14, 2022

Status of Foreign Fighters in the Ukrainian Legion

by Petra Ditrichová and Veronika Bílková

March 15, 2022

Law Applicable to Persons Fleeing Armed Conflicts

by Julia Grignon

March 15, 2022

Ukraine’s Legal Counterattack

by Michael Kelly

March 17, 2022

The ICJ’s Provisional Measures Order: Unprecedented

by Ori Pomson

March 17, 2022

Displacement from Conflict: Old Realities, New Protections?

by Ruvi Ziegler

March 17, 2022

A No-Fly Zone Over Ukraine and International Law

by Michael N. Schmitt

March 18, 2022

Time for a New War Crimes Commission?

by Diane Marie Amann

March 18, 2022

Portending Genocide in Ukraine?

by Adam Oler

March 21, 2022

Are Mercenaries in Ukraine?

by Robert Lawless

March 21, 2022

Abducting Dissent: Kidnapping Public Officials in Occupied Ukraine

by Katharine Fortin

March 22, 2022

Are Thermobaric Weapons Unlawful?

by Matt Montazzoli

March 23, 2022

A Ukraine No-Fly Zone: Further Thoughts on the Law and Policy

by Terry D. Gill

March 23, 2022

The War at Sea: Is There a Naval Blockade in the Sea of Azov?

by Martin Fink

March 24, 2022

Deportation of Ukrainian Civilians to Russia: The Legal Framework

by Michael N. Schmitt

March 24, 2022

Weaponizing Food

by Michael N. Schmitt

March 28, 2022

Command Responsibility and the Ukraine Conflict

by Noëlle Quénivet

March 30, 2022

The Siren Song of Universal Jurisdiction: A Cautionary Note

bySteve Szymanski and Peter C. Combe

April 1, 2022

A War Crimes Primer on the Ukraine-Russia Conflict

by Sean Watts and Hitoshi Nasu

April 4, 2022

Russian Booby-traps and the Ukraine Conflict

by Michael N. Schmitt

April 5, 2022

The Ukraine Conflict, Smart Phones, and the LOAC of Takings

by Gary Corn

April 7, 2022

War Crimes against Children

by Véronique Aubert

April 8, 2022

Weaponizing Civilians: Human Shields in Ukraine

by Michael N. Schmitt

April 11, 2022

Unprecedented Environmental Risks

by Karen Hulme

April 12, 2022

Maritime Exclusion Zones in Armed Conflicts

by Raul (Pete) Pedrozo

April 12, 2022

Ukraine’s Levée en Masse and the Obligation to Ensure Respect for LOAC

by Jann K. Kleffner

April 14, 2022

Cultural Property Protection in the Ukraine Conflict

by Dick Jackson

April 14, 2022

Results of a First Enquiry into Violations of International Humanitarian Law in Ukraine

by Marco Sassòli

April 14, 2022

Comprehensive Justice and Accountability in Ukraine

by Chris Jenks

April 15, 2022

Maritime Neutrality in the Russia-Ukraine Conflict

by David Letts

April 18, 2022

Cyber Neutrality, Cyber Recruitment, and Cyber Assistance to Ukraine

by Nicholas Tsagourias

April 19, 2022

Defiance of Russia’s Demand to Surrender and Combatant Status

by Chris Koschnitzky and Steve Szymanski

April 22, 2022

The Montreux Convention and Turkey’s Impact on Black Sea Operations

by Adam Aliano and Russell Spivak

April 25, 2022

Lawful Use of Nuclear Weapons

by Jay Jackson and Kenneth “Daniel” Jones

April 26, 2022

Litigating Russia’s Invasion of Ukraine

by Lawrence Hill-Cawthorne

April 27, 2022

Military Networks and Cyber Operations in the War in Ukraine

by Heather Harrison Dinniss

April 29, 2022

Building Momentum: Next Steps towards Justice for Ukraine

by Philippa Webb

May 2, 2022

Counternormativity and the International Order

by Dan E. Stigall

May 3, 2022

Destructive Counter-Mobility Operations and the Law of War

by Sean Watts and Winston Williams

May 5, 2022

Are We at War?

by Michael N. Schmitt

May 9, 2022

The Ukraine Conflict and the Future of Digital Cultural Property

by Ronald Alcala

May 13, 2022

Neutral State Access to Ukraine’s Food Exports

by James Kraska

May 18, 2022

Negotiating an End to the Fighting

by Michael N. Schmitt

May 24, 2022

Is the Law of Neutrality Dead?

by Raul (Pete) Pedrozo

May 31, 2022

Effects-based Enforcement of Targeting Law

by Geoff Corn and Sean Watts

June 2, 2022

U.S. Offensive Cyber Operations in Support of Ukraine

by Michael N. Schmitt

June 6, 2022

War Sanctions Steadily Degrade the Russian Maritime Sector

by James Kraska

June 7, 2022

The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 1

by Chris Jenks

June 22, 2022

The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 2

by Chris Jenks

June 24, 2022

The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 3

by Chris Jenks

June 28, 2022

Putting “Overall Control” to the Test of the Third Geneva Convention

by Alessandra Spadaro

July 6, 2022

The Risk of Commercial Actors in Outer Space Drawing States into Armed Conflict

by Tara Brown

July 8, 2022

The Release of Prisoners of War

by Jeroen van den Boogaard

July 8, 2022

The Attack on the Vasily Bekh and Targeting Logistics Ships

by James Kraska

July 11, 2022

Lessons from Syria’s Ceasefires

by Marika Sosnowski

July 12, 2022

Documentation and Investigation Responses to Serious International Crimes

by Brianne McGonigle Leyh

July 13, 2022

Rebel Prosecutions of Foreign Fighters in Ukraine

by René Provost

July 15, 2022

Forced Civilian Labor in Occupied Territory

by Michael N. Schmitt

August 2, 2022

Forced Conscription in the Self-Declared Republics

by Marten Zwanenburg

August 8, 2022

Amnesty International’s Allegations of Ukrainian IHL Violations

by Michael N. Schmitt

August 8, 2022

Oil Tankers as “Environmental Time Bombs,” or Not

by Mark Jessup

August 12, 2022

The Escalating Military Use of the Zaporizhzhia Nuclear Plant

by Tom Dannenbaum

August 22, 2022

Protected Zones in International Humanitarian Law

by Michael N. Schmitt

August 24, 2022

Photos of the Dead

by William Casey Biggerstaff

August 19, 2022

Deception and the Law of Armed Conflict

by William Casey Biggerstaff

September 8, 2022

Data-Rich Battlefields and the Future of LOAC

by Shane ReevesRobert Lawless

September 12, 2022

Russian Crimes Against Children

by Oleksii KaminetskyiInna Zavorotko

September 14, 2022

Targeting Leadership

by Mehmet Çoban

September 16, 2022

Illegality of Russia’s Annexations in Ukraine

by Lauri Mälksoo

October 3, 2022

Russia’s Forcible Transfer of Children

by Alison Bisset

October 5, 2022

The Kerch Strait Bridge Attack, Retaliation, and International Law

by Marko MilanovicMichael N. Schmitt

October 12, 2022

Russian Preliminary Objections at the ICJ: The Case Must Go On?

by Ori Pomson

October 13, 2022

The Complicity of Iran in Russia’s Aggression and War Crimes in Ukraine

by Marko Milanovic

October 19, 2022

Attacking Power Infrastructure under International Humanitarian Law

by Michael N. Schmitt

October 20, 2022

Dirty Bombs and International Humanitarian Law

by Michael N. Schmitt

October 26, 2022

Doxing Enemy Soldiers and the Law of War

by Eric Talbot JensenSean Watts

October 31, 2022

Are Civilians Reporting With Cell Phones Directly Participating in Hostilities?

by Michael N. SchmittWilliam Casey Biggerstaff

November 2, 2022

Using Cellphones to Gather and Transmit Military Information, A Postscript

by Michael N. Schmitt

November 4, 2022

State Responsibility for Non-State Actors’ Conduct

by Jennifer Maddocks

November 4, 2022

Reparations for War: What Options for Ukraine?

by Luke Moffett

November 15, 2022

Further Thoughts on Russia’s Campaign against Ukraine’s Power Infrastructure

by Michael N. Schmitt

November 25, 2022

Russia’s Allegations of U.S. Biological Warfare in Ukraine – Part I

by Robert Lawless

December 2, 2022

Russia’s Allegations of U.S. Biological Warfare in Ukraine – Part II

by Robert Lawless

December 9, 2022

The THeMIS Bounty Part I: Seizure of Enemy Property

by Christopher Malis and Hitoshi Nasu

December 12, 2022

Classification of the Conflict(s)

by Michael N. Schmitt

December 14, 2022

The THeMIS Bounty Part II: Stealing Enemy Technology

by Christopher Malis, Hitoshi Nasu

December 16, 2022

The “I Want to Live” Project and Technologically-Enabled Surrender

by David Wallace, Shane Reeves

January 13, 2023

UN Peacekeepers and the Zaporizhzhia Nuclear Plant

by Alexander Gilder

January 20, 2023

What’s in a Name? Getting it Right for the Naval “Drone” Attack on Sevastopol

by Caroline Tuckett

January 23, 2023

Ukraine’s “Suicide Drone Boats” and International Law

by Charles M. Layne

January 25, 2023

The Impact of Sanctions on Humanitarian Aid

by Alexandra Francis

January 27, 2023

A Wagner Group Fighter in Norway

by Camilla Cooper

February 1, 2023

The Legal and Practical Challenges of Surrendering to Drones

by William Casey Biggerstaff,Caitlin Chiaramonte

February 8, 2023

Field-Modified Weapons under the Law of War

by Ronald Alcala

February 13, 2023

The Wagner Group: Status and Accountability

by Winston Williams, Jennifer Maddocks

February 23, 2023

The Law of Crowdsourced War: Democratized Supply Chains – Part I

by Gary Corn

March 1, 2023

Reprisals in International Law

by Michael N. Schmitt

March 6, 2023