THEORIES OF MIXED OCCUPATION

The primary figures elucidating a theory of mixed occupation were Carl Heyland and Karl Strupp. Strupp was a full professor at University of Frankfurt, editor of the Zeitschrift für Volkerrecht, as well as the prestigious Worterbuch des Volkerrechts.

the occupation of German territory... as a result of the Armistice legally presents a hermaphroditic [Zwittergebilde] structure. On the one hand, it is important to note that the Armistice is an end to military operations and not the end of the state of war; on the other hand, the occupation exists on the basis of a contract and not on the basis of military events.^[379]

This hermaphroditic structure was new and anomalous, combining a view of the post-Armistice occupation as both a continuation of the state of war and a contractual, legal arrangement. It was therefore neither an occupatio bellica, nor an occupatio pacifica. As a result, the authors held that, although the German state had transferred its territorial jurisdiction to the occupying powers, sovereignty was still retained by the German state, for it had merely signed a contractual agreement in regard to the administration of its territory for a set time period.

As Heyland's post-war analyses made clear, prior to 1919, most German jurists had distinguished between two broad cases of occupation. First, there was the ‘occupation of a stateless territory, i.e. the establishment of the territorial jurisdiction of the occupier in a territory previously stateless', a case which was taken to apply primarily in the context of colonial expansion.^[381] Occupation of the Rhineland was not a form of colonial rule based on the principle of territorium nullis,^[382] so the first category was rejected out of hand. By contrast, Heyland reserved a different category for the occupation of foreign state territories - or more accurately, where a state was recognized by European powers - which could take three forms, namely ‘a) as a military occupation, b) as a peaceful occupation' or, emerging separately after 1919, ‘c) as an occupation by virtue of an armistice'.^[383] Each of these subcategories had a distinct implication for the sovereignty of the occupied territory and the issuing of ordinances.

Beginning with the classical form of occupatio bellica, Heyland explained that the state of occupation could only be brought about as a result of a proclamation by the leader of the occupying forces, and their military force.^[384] Here, he drew explicitly on the text of article 42 of the Hague Convention of 1907, which stated that ‘a territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exer- cised'^[385] This meant that the ‘authority of the occupier in a militarily occupied territory is a purely factual process [tatsächlicher Vorgang]’ ^[386] Since occupatio bellica is based on the military exercise of power, its validity can only be measured by the extent to which the occupation itself is enforceable militarily.

Since the state of war was of a ‘temporary nature', the occupation must arrive at some sort of a quasi-permanent legal foundation at its end.^[388] Here, there were also two possibilities. Either the occupier loses the area militarily and is forced to retreat, or the occupier retreats voluntarily, both cases leading to a reversion to the previous legal order or the status quo ante.^[389] Or, secondarily, Heyland pointed to the historical precedent of occupation leading to debellatio, or ‘the complete defeat and annihilation of the inde­pendent existence of the occupied state', following which the territory would be incorporated into the victor's state.^[390] Neither claim, however, explained who held sovereignty during occupation.

To do that, Heyland turned to positive law, and particularly article 43 of the Hague Convention. Article 43 emphasized that occupation begins the moment there is ‘an actual transition of legal authority into the hands of the occupier', which by necessity assumes the suspension of the territorial jurisdiction [Gebietshoheit] of the occupied state.^[391] This does not suggest that the sovereign has changed, but rather that ‘the hostile [meaning the occupied] sovereign stays the ruler of the territory'. Nevertheless, ‘he is for the duration of the occupation merely limited in the actual exercise of his territorial sover- eignty'.^[392] The temporary nature of occupation is legally reframed as a suspen­sion of territorial jurisdiction by the sovereign power, not the permanent loss of political or legal sovereignty during such time as occupation lasts.

Heyland's argument turns on this finessing of the conceptual relationship between the sovereign of a territory and the exercise of territorial jurisdiction [Gebietshoheit], the former expressing the traditional legal claim to sover­eignty, but the latter capturing real, concrete jurisdiction over the land in the present tense.

One seemingly paradoxical result of this understanding of military occupa­tion in relation to sovereignty, according to Heyland, is that ‘the territorial jurisdiction exercised by the occupant in the occupied territory is that of the occupied state, whose position the occupier effectively stepped into as a result of the occupation'.^[395] Since it is the sovereign's territorial jurisdiction which has been transferred to the occupying forces, the occupier is acting through the sovereign's original claim. However, the occupier is not bound by the same limitations on the exercise of state authority as the sovereign; rather, ‘he acts much more without being limited by the constitutional limitations, which were implemented for the hostile sovereign', and is instead only bound by the ‘interest of his own warfare as well as the protection of the population in that territory'.^[396] This had formed part of the German legal defense against the suggestion that its earlier occupation of Belgium had been illegal.

Heyland briefly mentioned two opposing arguments raised by contempor­ary jurists as to the relation between occupation and Gebietshoheit. On the one hand, but without giving a source for the view, Heyland described a position according to which the authority exercised by the occupier is not derived from any state, but rather from the norms of international law itself. He rejected the strong version of this view, because the assumption of ‘a highest authority in international law... means a contradiction in itself, because international law only has relations between nations as its subject'.^[400] Nevertheless, for Heyland, international law is the only limitation on the exercise of the territorial jurisdiction of the occupying state. For while the Hague Convention (1907) established that occupation was not an unlawful action [Deliktshandlung], it could be ‘only through the norm of the inter­national laws of war' that any ‘limit' to ‘the exercise of territory sovereignty inside the territory of a hostile state' might occur.^[401] As a result, the conditions for the exercise of state authority in occupied territories is for Heyland contained entirely in the following proposition: ‘Actions of the occupier inside the occupied territory are lawful insofar as no demonstrable provision of the law of war stands in opposition.’^[402] Thus, if one wanted to oppose particular ordinances or actions undertaken by the occupying force, the only legal recourse would have to be found in existing international law.

On the other hand, Heyland also rejected another common position in contemporary law, that the ‘occupier exercises its own territorial sovereignty in occupied areas', which is interpreted as extending onto the occupied terri- tory.^[403] Here, Heyland replied by arguing that the language of article 43 expli­citly stipulated a ‘transfer’ [Übergang] of Staatsgewalt, not an extension [Ausdehnung] of it.

At the same time, an antithetical version of occupation originating in times of peace (occupatio pacified) could be found in the law of nations. This version necessitated the explicit contractual consent of the occupied state and could not originate in force. Rather, being based on contract the terms and conditions of occupation are explicitly stipulated in the text of the agreement. This pointed in theory to the existence of a higher (sovereign) power that could determine in advance the jurisdiction of any occupying forces. However, this concept remained drastically under-theorized in German-language texts of the period. The Handbuch contains two pages of discussion on peaceful occupation, while giving over twenty pages to the theory of belligerent occupation. That suggests its use more as an analytical concept than a developed theory in German international law.

An occupation following an armistice, however, implied something differ­ent from either a purely belligerent or a purely peaceful occupation, and this required a theory of ‘Mischbesetzung’, or mixed occupation.^[404] Heyland had imported his understanding of occupation following armistice directly from Strupp’s earlier article on the Zwittergebilde. For example, he wrote that ‘cases of occupation of foreign territory are to be subsumed under the concept of an occupation following an armistice, in which a state occupies a territory of another, hostile state, which the occupying state had not already occupied militarily’.^[405] In other words, although following a period of war, the occupied territories were not themselves captured during the conflict. Furthermore, this sort of occupation usually starts during a time of war, but when the actual operations of war had ceased.^[406] As a result, the occupation cannot be seen to be an extension of occupatio bellica, but rather must be based on a different principle. This principle, and here Heyland refers directly to Strupp, is grounded upon the prevention of future conflict. It underpins an ‘occupation oriented towards security of an eminently peaceful nature’.^[407]

Heyland claimed that occupation beginning from an armistice was neces­sarily closer to the pacific type, as it ‘does not take place - like belligerent occupation - against the will of the occupied state through an act of military occupation, but rather as in the cases of peaceful occupation with the consent of the occupied state, on a contractual basis'.^[408] This had two further conse­quences. First, because the occupation requires the consent of the occupied state at the outset, the occupied state is still sovereign, as it has freely given up its sovereignty through a contract.^[409] This points to the dominant legal positivism of the period, that international law is created through treaties entered into by sovereign states, which can generate stable claims through shared recognition.^[410] By 1919, in contrast to 1871, however, many international lawyers had come to see international organizations and norms as functionally equivalent to the actions of domestic states, at the same time as they general­ized the sphere of the international to encompass humanity itself, in order to reject traditional and domestic models of sovereignty.^[411] Second, the site of justification had changed. Instead of military force as the impetus for the creation and judgment of legal norms, German lawyers focused ‘in the first instance [on] the provisions of the armistice' that could serve as the basis for the ‘legal situation created by an occupation following an armistice'.^[412]

Distinguishing between a military occupation and an occupation based on an armistice, Heyland argued that the Hague Convention no longer directly applied to the governance of occupied territory, as it was only designed to apply in instances where the territory was initially captured as a result of ‘military success'. Those norms were derived from the condition of an occu­pation based on power, not contract. Moreover, because such territories were not taken through military force alone, the rights given to an occupying force could not surpass those given to it during times of war. Thus, even though the Hague Convention could not be taken to apply directly to instances of mixed occupation, it formed the maximal boundary for those powers an occupier might wield.

In a subsequent piece, Heyland went on to argue that the legal situation in the Rhineland could no longer be classified as an occupation based on an armistice. Following Versailles, it had become a ‘peaceful occupation based on a treaty for the purpose of security'.^[413] Therefore, Germany's territorial jurisdiction was ‘only restricted insofar as the jurisdictional powers granted to the occupying powers as a result of the Peace Treaty, the Rheinlandabkommen, or norms of customary law extends'.^[414] As a result, anything not explicitly mentioned in a treaty or agreement was within the power of the German state, while those areas mentioned in the treaty were only contractually extended to another sovereign power. The state limited itself, on its own terms, to this sort of temporary occupation, in a conceptual construction that is analogous to the sort of self-binding account of state sovereignty as juristically fictive but historically and practically real, previously outlined by writers like Georg Jellinek.

These constructions of mixed occupation structured the interpretations embraced by the Reichsgericht [Imperial Court of Justice] in their official characterization of the occupation. Although on two occasions in 1920 the court had relied on a theory of belligerent occupation in its ruling, it switched its official interpretation in 1922, declaring it ‘no longer upholds the theory that the occupation of the Rhineland under the armistice agreement was a belli­gerent occupation, as it originally held'. Now it maintained that the essential source of the occupiers' power was in ‘the wording... of the armistice agreement'.^[415] These discourses of the Mischbesetzung became so successful in part because they allowed Germany to retain the distinction between an Allied occupation of the Rhineland, and the earlier German occupation of Belgium.^[416] But they also had critical implications for dealing with the legality of ordinances issued by the Inter-Allied High Commission to govern the territory. The Commission made extensive use of such instruments, issuing roughly eighty by the end of 1922.^[417] Their content ranged from bans on publications, performances, and concerts perceived as critical of the

Commission, including a special ban on materials debating the Kriegsschuldfrage,^[418] to authorizing the confiscation of furniture.^[419] These ordinances were used to authorize the arrest of members of the public who refused to greet the occupying forces.

However, it was the debate over the lifting of immunity for elected repre­sentatives that tested the extent of the High Commission's jurisdiction. After several instances of elected officials being imprisoned under the authority of a French military court, the Reichskommissar von Starck wrote on 30 May, 1921, reminding the Commission of the immunity granted to representatives by article 37 of the Weimar Constitution. The High Commission's response to the letter stated ‘the [C]ommission is of the view, that no provision of the Peace Treaty nor of the Rheinlandabkommen provides this immunity, and that the Rheinlandabkommen much rather contains in Article 3 a general provision on the competency of the military courts in the occupied territory'.^[420] The response articulated a view that would continue to haunt Weimar legal theory, namely that the source of law in the occupied territories was not the Weimar Constitution, but rather the Versailles Treaty. And furthermore, that it was the interpretation of these terms put forward by the Commission, and not that offered by the Weimar government, which would have practical force.

Heyland, however, immediately picked up on the text of article 3 to argue that the ordinances themselves lacked legal force, as the authority granted by the article was extremely limited.^[421] Article 3 stated that ‘The high commission has the authority to issue ordinances, so far as it is necessary for the assurance of the maintenance, security, and the needs of the military forces of the allied and associated powers... these ordinances have legal force.'^[422] That would seem to make ordinances on the monopoly of sherry, for example, irrelevant to their considerations.^[423] Equally, if the basis of all the ordinances was to be purely military, then it seemed that the Commission was nothing more than an ‘appendage of military administration'.^[424] As one commentator noted, ‘a complete military dictatorship rules in the occupied territory; the will of the hostile military commanders, who exercise unlimited power, is authoritative for everything'.^[425] Thus, even while German lawyers advanced a theory of mixed occupation, the reality of the occupation seemed to point in an altogether different direction. These were precisely the sorts of contradictions and tensions which would be explicitly rejected by Schmitt, whose analyses of sovereignty, international law and occupation built on his earlier reflections on the state of siege and military dictatorship.