The Montevideo Convention and Military Occupation 

Scenarios 1 to 3.


Scenario 1.
Real situation - a summary: As given above, the United States Military Government (USMG) was the principal occupying power of all areas given up by the Spanish military forces after the Spanish American War.

Details: With particular reference to the situation of Cuba from 1898 to 1902, the USMG exercised administrative authority for the military occupation itself. The correct determination of Cuba as a "person of international law", i.e. a "sovereign state", is as given on the Cuba Chart at Point C, when we can verify that all four criteria of the Montevideo Convention are fulfilled. By implication, at Point A, or at any of the Points B1 to B8, Cuba cannot be considered to be a sovereign state, but is still under military occupation. 

Note 1: For ease of reference, we commonly refer to the time period after surrender of the enemy troops and before coming into effect of the Peace Treaty as "belligerent occupation." 

Note 2: Military government continues until legally supplanted. After the coming into effect of the Peace Treaty, but without proclamation of the end of military government by the principal occupying power, military occupation can only continue. However, at this stage it is called "friendly occupation," or more commonly referred to as the "civil affairs administration of a military government."

Invasion and Occupation

Nature of Invasion. If resistance is offered, the state of invasion within any portion of a belligerent's territory corresponds with the period of resistance. If the invasion is unresisted, the state of invasion lasts only until the invader has taken firm control of the area with the intention of holding it. Invasion is not necessarily occupation, although occupation is normally preceded by invasion and may frequently coincide with it. An invader may attack with naval or air forces or its troops may push rapidly through a large portion of enemy territory without establishing that effective control which is essential to the status of occupation.

Nature of Occupation: Small raiding parties or flying columns, reconnaissance detachments or patrols moving through an area cannot be said to occupy it. Occupation, on the other hand, is invasion plus taking firm possession of enemy territory for the purpose of holding it.


Scenario 2.

Hypothetical situation - a summary: The occupation of Cuba is delegated to a local insurgent group which has been recognized as a co-belligerent in the Spanish American War.

Details: Suppose that a major local rebel group in Cuba called the Balladeros had been recognized as a co-belligerent with the United States in the Spanish American War, and the administrative authority for the occupation of Cuba had been delegated to this rebel group. Although the Balladeros are exercising administrative authority for the occupation, the flag of the principal occupying power should be raised and flying all the time through the completion of Point B8, and indeed this would normally be the case since a rebel group would perhaps not have its own flag. It is important to remember that except for these basic considerations, the remainder of the analysis for this Scenario remains the same as for Scenario 1. 

Note 1: Wars in the modern area are often conducted by the military forces of several countries cooperating together as "allies." Allies are also called "co-belligerents." However, occupation is not "allied," rather there is a "principal occupying power." In order to understand the true nature of military occupation, and to discuss the rights and responsibilities of all persons residing in the occupied area, it is very important to determine the country which is the "principal occupying power" of the theatre. This must certainly be specified in the Peace Treaty, and may specified in, or inferred from, the original surrender documents or accompanying general orders. 

Note 2: Legally speaking, all of the occupation is under the administrative authority of the "principal occupying power," but the occupation of specific geographic areas may be delegated to recognized co-belligerents. Under such delegation of administrative authority, over and above the "principal occupying power" of the theatre, all other nationality military forces taking part in the occupation are "junior partners in the occupation." 


 Scenario 3.

Hypothetical situation - a summary: Venezuela was a co-belligerent with the United States in the Spanish American War, and was delegated the occupation of Cuba. Respecting the law of occupation, it raised the flag of the principal occupying power over Cuba, and many people questioned the legality or appropriateness of this action. 

Details: Suppose that Venezuela had been recognized as a co-belligerent with the United States in the Spanish American War, and the administrative authority for the occupation of Cuba had been delegated to the military troops of Venezuela. Although the Venezuelan military troops are exercising administrative authority for the occupation, the flag of the principal occupying power should be flying up through the completion of Point B8. If Venezuela accepts the surrender of Spanish troops, it should raise the flag of the principal occupying power. 

However, for Venezuelan representatives to raise a flag other than their own may seem strange to many people, or indeed objections may be heard from various quarters, since Venezuela indeed has its own flag, as well as its own culture and history. It is precisely for this reason that the determination of the "principal occupying power" should be made early on, and ideally the representatives of the "principle occupying power" should accept the surrender of enemy troops. Any delegation of administrative authority for the occupation is then the next step, and a clear paperwork trail is established. Except for the clarification of these basic considerations, the remainder of the analysis for this Scenario remains the same as for Scenario 2.





Continue to Scenarios 4 to 6




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