Belligerent occupation or creeping annexation? Identifying the red flags

The Military Law and the Law of War Review, vol. 61, pp. 86–122

Abstract

The prohibition of territorial acquisitions by force is undisputed. Scholars agree that an occupying power cannot annex any of the territory it occupies, or its status would become illegal. But at what point does an occupation regime cross a legal tipping point into annexation? This article seeks to conceptualize the threshold between occupation and creeping annexation. It posits that, to answer that question, it is necessary to make an overall assessment of the quality and quantity of the display of the occupant state’s powers over the occupied territory. The study analyses nine examples of de jure or de facto annexation. Through a systematic comparative analysis of those nine examples with three other case studies of belligerent occupation in which the occupier(s) did not have the animus to annex the occupied territory, the article identifies several ‘red flags’ of an occupying state’s intention to integrate a territory. While these indicators are not legal conditions of creeping annexation, they are a tool that legal scholars and policy makers could use to trigger preventative action or inform the international community’s response to situations of creeping annexation.

Authors 1

1. Giulia Pinzauti corresponding Aachen Assistant Professor of Public International Law Grotius Centre for International Legal Studies Leiden Law School

   Leiden University

   Affiliation as printed

   Assistant Professor of Public International Law, Grotius Centre for International Legal Studies, Leiden Law School