Occupation Under International Law

Framing Occupation in International Law

Occupation under international law is a specific legal situation, not just a political label or a moral judgment. It describes a temporary condition in which the territory of one party is placed under the effective control of the armed forces of another party, without transferring sovereignty. In the Israel Palestine context, debates about occupation are central to how states, courts, and international organizations assess the legality of policies in the West Bank, including East Jerusalem, and Gaza.

This chapter focuses on the legal framework that defines occupation, the main rules that govern it, and how these rules are invoked and contested in relation to Israel and the Palestinian territories. The broader moral, political, and historical questions are treated elsewhere in the course. Here, the focus is on law, legal concepts, and legal arguments.

Defining Occupation

Under international humanitarian law, often called the law of armed conflict, the classic definition of occupation comes from the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949. These rules were drafted with European wars in mind, but they have been applied in many later conflicts.

A territory is considered occupied when it is actually placed under the authority of a hostile army. In practice, lawyers and courts tend to focus on two key elements. First, the armed forces of a state exercise effective control over a territory that is not its own sovereign territory. Second, the previous sovereign is unable to exercise its authority there. This situation can exist even if there is no ongoing heavy fighting and even if the occupying power does not formally declare that it is occupying the territory.

Crucially, occupation is a factual situation. It does not depend on whether the occupying state admits it is an occupying power, nor on whether it claims that the territory has a special status. If the conditions of effective control are met, the law of occupation applies. This approach is widely accepted by international courts and the International Committee of the Red Cross.

Main Legal Sources

Several core legal instruments govern occupation. The Hague Regulations, especially Articles 42 to 56, set out early rules on the powers and duties of an occupying force, with a strong focus on protecting property and maintaining public order and civil life. The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted after the Second World War, goes much further in specifying protections for civilians who find themselves under enemy control.

Article 2 common to the four Geneva Conventions states that the conventions apply in all cases of partial or total occupation of the territory of a High Contracting Party. Article 47 of the Fourth Geneva Convention stresses that protected persons in occupied territory shall not be deprived of the benefits of the convention by any change introduced as the result of the occupation, for example annexation or transfers of authority. Article 49 prohibits individual or mass forcible transfers and deportations of protected persons, and also addresses transfers of the occupying power’s own civilians into the occupied territory. Articles 64 onwards deal with administration, penal law, and the functioning of courts under occupation.

Beyond these treaty provisions, customary international law, which reflects general practice accepted as law, also plays a role. The International Court of Justice, regional human rights courts, and various UN bodies have developed principles that interpret and apply the law of occupation. Modern practice also takes into account human rights treaties, arguing that they continue to apply, alongside humanitarian law, in occupied territories.

Purpose and Logic of the Law of Occupation

The law of occupation is not intended to legitimize conquests or to reward military success. Instead, it is built on two ideas. First, occupation is meant to be temporary. The occupying power does not acquire sovereignty and must respect the existing legal order as far as possible. Second, the occupying power bears responsibility to protect the civilian population and to maintain basic public order and safety.

This creates a tension at the heart of the law. The occupying power has authority to administer the territory, but this authority is limited. It is not free to reshape the territory for its own benefit or to make permanent changes that would prejudge the territory’s final political status. In legal terms, the occupier is sometimes described as an administrator and usufructuary, a kind of caretaker that may use certain resources but must safeguard the capital and structure of the territory.

Status of the Palestinian Territories in Law

In the Israel Palestine conflict, the status of the West Bank, including East Jerusalem, and Gaza has been the subject of intense legal debate. The dominant view in the United Nations system, among most states, and in the advisory opinion of the International Court of Justice, is that these areas are occupied territory and that Israel is the occupying power.

This position rests on the idea of effective control, not on the pre 1967 status of the territories. Israel took control of the West Bank and East Jerusalem from Jordan, and Gaza from Egypt, in the 1967 war. The fact that no widely recognized Palestinian state controlled these territories beforehand has not prevented them from being treated as occupied. The International Court of Justice, in its 2004 advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory, repeatedly referred to the territories as occupied and applied both the Hague Regulations and the Fourth Geneva Convention.

Israel has often used a different legal characterization and has at various points called the West Bank disputed rather than occupied, arguing that there was no recognized sovereign from whom the territory was taken. Israel has also contested the de jure applicability of the Fourth Geneva Convention, although it has stated that it will apply its humanitarian provisions de facto. Much of the international legal discussion about occupation in this context consists of engagement with, or rejection of, these arguments.

The status of Gaza after Israel’s 2005 disengagement is also disputed. Israel withdrew its settlers and permanent ground forces, but retained control over Gaza’s airspace, territorial waters, population registry, and much of its borders. Many UN bodies, as well as the International Committee of the Red Cross and a number of legal scholars, maintain that Israel continues to exercise significant control and therefore remains an occupying power under international law. Israel rejects this characterization and describes its relationship with Gaza as a situation of armed conflict with a hostile entity, rather than occupation. The legal characterization matters because it determines which specific rules apply.

Duties of an Occupying Power

Under the law of occupation, the occupying power must ensure, as far as possible, the welfare of the civilian population subject to its authority. This includes obligations to provide for or facilitate the provision of food, medical supplies, and public health measures, especially when local resources are insufficient. It must also ensure that schools, hospitals, and social services can function, and that basic civil life can continue.

The occupying power must maintain public order and safety, but it must do so while respecting existing laws and institutions unless absolutely prevented. It may introduce new laws only for limited reasons, such as security, compliance with international law, or the benefit of the local population. It must respect private property and cannot confiscate it arbitrarily. Public property can be administered and used, but not permanently disposed of in ways that disregard the underlying rights of the local population or future sovereign.

In addition, the occupying power must protect civilians from violence, including violence by its own forces and by third parties. It must respect family honor, rights of religious practice, and the functioning of religious and charitable organizations. These duties are not optional or dependent on reciprocity. They apply independently of whether the local population resists or cooperates.

Prohibitions on Annexation and Demographic Change

One of the clearest implications of occupation law is that annexation of occupied territory is not recognized as lawful. Article 47 of the Fourth Geneva Convention states that protected persons shall not be deprived, in any case or in any manner, of the benefits of the convention by any change introduced by the occupying power, including annexation. The UN Charter also prohibits acquisition of territory by force, and this principle has been repeatedly affirmed in resolutions about the Middle East conflict.

The law of occupation also restricts demographic engineering. Article 49 of the Fourth Geneva Convention contains two distinct but related rules. First, it prohibits forced transfers or deportations of the local population from occupied territory, except in very limited circumstances such as evacuation for security or imperative military reasons, and even then only temporarily and with proper arrangements. Second, it states that the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.

In the Israel Palestine context, these rules are at the center of debates about Israeli settlements in the West Bank and East Jerusalem, as well as about displacement of Palestinians. Numerous UN Security Council and General Assembly resolutions, and statements by the International Court of Justice and the International Committee of the Red Cross, have referred to the transfer of the occupier’s population into occupied territory as contrary to international law. Israel challenges the application of Article 49 in this way and distinguishes between state directed deportation and voluntary movement, which leads to continuing legal controversy.

Security, Resistance, and Repression

Occupation law allows the occupying power to take certain security measures. It can restrict movement, impose curfews, or detain individuals if these steps are necessary for security and carried out according to law. It may try civilians in its military courts only under strict conditions and with guarantees of fair trial. Collective penalties and reprisals against protected persons and their property are prohibited. Destruction of property is forbidden except where absolutely necessary for military operations.

At the same time, the local population retains certain rights. They are not required to swear allegiance to the occupying power. They may not be forced to serve in the occupier’s armed or auxiliary forces. The law on armed resistance is complex and has evolved over time, especially with the development of rules on wars of national liberation, but in all cases civilians remain protected from attack unless and for such time as they directly participate in hostilities.

These rules are frequently invoked in discussions of movement restrictions, checkpoints, administrative detention, house demolitions, and military operations in the occupied territories. Different actors frame these measures either as legitimate security steps or as unlawful collective punishment or repression, often using the language of occupation law to support their positions.

Human Rights Law in Occupied Territory

Although the traditional law of occupation emerged from a humanitarian law framework, human rights treaties have increasingly been applied in parallel. The International Court of Justice has held that human rights obligations do not stop at a state’s borders, but can apply wherever a state exercises jurisdiction or effective control. This includes occupied territories.

This view means that an occupying power has not only humanitarian duties under the Hague Regulations and the Fourth Geneva Convention, but also human rights duties, for example regarding the right to life, prohibition of torture and inhuman treatment, freedom of movement, family life, and economic and social rights. Where both bodies of law apply, humanitarian law is usually treated as the more specific lex specialis in matters directly related to hostilities, but human rights law continues to inform the interpretation of obligations in areas such as policing, detention conditions, and access to education and health care.

Israel has argued that its human rights treaty obligations apply primarily within its recognized territory and that humanitarian law is the main framework for its actions in the Palestinian territories. Many UN treaty bodies and human rights experts dispute this, and instead affirm the extraterritorial application of human rights law. This disagreement contributes to different assessments of the legality of specific practices in the occupied territories.

The Role of International Courts and Organizations

International law on occupation is interpreted and applied by a variety of institutions. The International Court of Justice provides advisory opinions and, in some cases, binding judgments on disputes between states. In its advisory opinion on the wall, the Court concluded that the West Bank, including East Jerusalem, is occupied territory and that elements of Israel’s construction of the barrier, along with associated measures such as land expropriation and restrictions on movement, were contrary to the law of occupation and human rights law.

The International Criminal Court can investigate and prosecute individuals for alleged war crimes and other serious crimes, including certain violations committed in occupied territory. The Rome Statute includes as war crimes serious breaches of the Geneva Conventions and other grave violations, such as unlawful deportation or transfer of population. The question of jurisdiction over crimes committed in the Palestinian territories has been the subject of detailed legal analysis. One controversial issue has been whether Palestine can be considered a state party for the purposes of the Statute. Developments in this area are addressed elsewhere in the course.

UN bodies such as the Security Council, General Assembly, Human Rights Council, and special rapporteurs regularly address questions of occupation. Their resolutions and reports do not create binding law in the same way treaties or court judgments do, but they shape how the law is understood and applied, and they express the collective views of many states about the situation on the ground.

Temporariness, Prolonged Occupation, and Legal Debates

The law of occupation was drafted with the idea that occupation would be temporary, often lasting months or a few years until a peace treaty. In the case of Israel and the Palestinian territories, the situation has extended over decades. This creates what many scholars call a prolonged occupation. The law itself does not set a strict time limit, but a long duration raises difficult legal and ethical questions.

One question is whether an occupier that maintains control for many decades can still claim to be simply administering the territory temporarily. Another is whether cumulative changes to the territory, including settlement expansion, infrastructure, and legal integration with the occupier’s own systems, amount to de facto annexation. Some legal analyses argue that certain prolonged occupations may evolve into situations of unlawful annexation or of institutionalized domination that raise additional legal concerns beyond classic occupation law.

In the Israel Palestine context, many international statements emphasize that the long duration of the occupation and its associated policies are incompatible with the idea that occupation is temporary and must not prejudice the right of self determination of the Palestinian people. Israel, on the other hand, tends to present its presence in the territories in connection with security needs, historical claims, and the absence of a negotiated final status agreement.

Occupation, Self Determination, and Future Status

Occupation law intersects with the right of peoples to self determination, which is a core principle of the UN Charter and many human rights treaties. Self determination gives a people the right to freely determine their political status and to pursue their economic, social, and cultural development. In legal discussions about the Palestinian territories, the right of the Palestinian people to self determination is often mentioned alongside occupation.

The presence of an occupying power must not block the exercise of this right. Long term control, combined with policies that fragment territory, alter demographics, or limit political expression, can be judged against standards of both occupation law and self determination. This is why legal debates about settlements, annexation declarations, and restrictions on Palestinian political life are framed not only as questions of military administration, but also as questions of whether a people can realistically exercise self determination under prolonged occupation.

Legal Language and Political Disagreement

The vocabulary of occupation under international law is often used to support political positions. One side may invoke occupation law to criticize policies as illegal, while the other may question whether there is an occupation at all, or may stress security needs and historical context. It is important to distinguish between the legal framework, which is relatively stable, and the political uses of that framework, which are contested and strategic.

In studying the Israel Palestine conflict, recognizing the legal definition of occupation, the main obligations of an occupying power, and the central controversies allows you to understand why international debates are framed as they are. It also clarifies that calling a territory occupied is not simply taking a political side, but applying a specific set of legal tests about control, sovereignty, and responsibility. How those tests are interpreted and which facts are emphasized remains part of the broader dispute that this course explores in other chapters.