US Supreme Court Cases

The direct result of military victory is the establishment of effective military control over foreign territory, which confers upon the controlling power the jurisdiction to administer that territory through military government. The U.S. Supreme Court has recognized that the power exercising such control becomes the legal occupier (aka "principal occupying power") with legal responsibility for conducting the military occupation. This jurisdictional authority derives from the fact of military victory itself, not from whether the territory was formally ceded to the controlling power through treaty. These Supreme Court precedents address the legal implications of conquest, territorial control, and military occupation—questions that are analytically distinct from whether formal territorial cession has occurred.

The following decisions are exceedingly illustrative:

In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Justices held that:

If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government . . .

In Dooley v. U.S., 182 U.S. 222 (1901), the Justices held that:

. . . . . The doctrine upon this subject is thus summed up by Halleck in his work on International Law: "The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world and confirmed by the writings of publicists and decisions of courts, -- in fine, from the law of nations. . . . "

In Fleming v. Page, 50 U.S. 603 (1850), the Justices held that:

. . . . the conquered inhabitants pass under a temporary allegiance to the conqueror, and are bound by such laws, and such only, as he may choose to impose. The sovereignty of the nation which is thus unable to protect its territory is displaced, and that of the successful conqueror is substituted in its stead.

Again in Fleming v. Page, 50 U.S. 603 (1850), the Justices held that:

The messages of the President to Congress during the war, and the instructions from the heads of departments, contain authoritative declarations as to the right of the United States to acquire foreign territory by conquest, and as to the effect of such conquest upon the sovereignty of the conquered territory, in accordance with the principles above stated. Thus, the President, in his message of December, 1846, says:- 'By the law of nations a conquered territory is subject to be governed by the conqueror during his military possession, and until there is either a treaty of peace or he shall voluntarily withdraw from it. The old civil government being necessarily superseded, it is the right and duty of the conqueror to secure his conquest, and to provide for the maintenance of civil order and the rights of the inhabitants.'

In U.S. v. Chaves, 159 U.S. 452 (1895), the Justices held that:

We adopt the language of Chief Justice Marshall in the case of U.S. v. Percheman, 7 Pet. 51, 86, as follows: 'It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign, and assume dominion over the country.'

In Dorr v. U.S., 195 U.S. 138 (1904), the Justices held that:

As early as the February term, 1810, of this court, in the case of Sere v. Pitot, 6 Cranch, 332, 3 L. ed. 240, Chief Justice Marshall, delivering the opinion of the court, said:

'The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory.'

. . . . .

And later, the same eminent judge, delivering the opinion of the court in the leading case upon the subject (American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542, 7 L. ed. 242, 255), says:

'The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty.

'The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace.'

In MaCleod v. U.S., 229 U.S. 416 (1913), the Justices held that:

The local government being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation.

The Occupying Power and Military Government

Unfortunately, even a thorough overview of the Geneva Conventions, Hague Conventions, Hague Regulations, FM 27-10, the ICRC Commentaries, and numerous books written by military experts fails to locate a precise definition of "the occupying power." For this, we need to turn to U.S. Supreme Court decisions.

In fact, in situations of military conquest, it is the conqueror that fulfills the role of the occupying power (i.e. "the legal occupier"), displacing the pre-existing authority and gaining full rights to govern the territory. These rights include taking all steps necessary to establish and implement its own authority. The U.S. Supreme Court has ruled on such situations many times. The above given quotations are very notable.

The form of administration by which an occupying power exercises government authority over occupied territory is called "military government." For the United States, this is the United States Military Government (USMG).

The U.S. Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments.

The Right of Self Defense and the UN Charter

Following the Japanese bombings of Pearl Harbor Hawaii, Guam, and Wake Island on December 7-8, 1941, the United States Congress immediately issued a Declaration of War against Japan.

Hence, the United States' military actions in attacking Japan's four main islands, Taiwan, the Ryukyus, etc. cannot be described as instituting a "war of aggression," or a "war of conquest," which refer specifically to military conflicts waged without the justification of self-defense.

Notably, the United States' conquest of the Ryukyus and Taiwan occurred before the founding of the United Nations on October 24, 1945. Despite this, many people also make the charge that aggressive actions, such as military conquest, are illegal in the modern world, and a direct violation of the UN Charter.

However, even under the UN Charter, the right of self defense is recognized.

Article 51
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations . . . . . "

During the WWII period, US military actions against Japan's four main islands, Japan's overseas territories, and other areas under the control of Japanese military forces were a direct response to the Japanese unprovoked attacks against US territories on December 7-8, 1941.

Re: Determination of the Legal Occupier

U.S. Supreme Court Cases

The Occupying Power and Military Government

The Right of Self Defense and the UN Charter