International Humanitarian Law

Situations of occupation

International humanitarian law adopts a pragmatic definition of occupation: the effective control over a territory by a foreign military force. Occupation does not give the occupying power sovereignty over the territory; occupation is only temporary.

Effective control is understood as a combination of effective military control and effective administrative control (article 42 Hague Regulations and article 6 IVGC.)

When does an ocupation start?

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 exercised.” (Article 42 of the Hague Regulations.)
Read more about the Hague Regulations

Occupation does not give the occupying power sovereignty over the territory; occupation is only temporary.

Once a situation exist which amounts to an occupation, the law of occupation applies – motives for the presence of the foreign military forces are irrelevant. The question is a matter of facts. It does not make a difference whether an occupation has received UN Security Council approval or what its aim is for the applicability of the law of occupation.
Read more about the Law of occupation
To ICRC and Article 42

When does an occupation end?

International humanitarian law (IHL) adopts a pragmatic definition of occupation: the effective (actual) control over a territory by a foreign military force. Effective control is understood as a combination of effective military control and effective administrative control (article 42 Hague Regulations and article 6 IVGC).
To ICRC and Article 42
To ICRC and Article 6

Effective control

Military control is a factual issue. The occupying power can have effective military control even if it is not physically present in the territory itself. If the occupying power is in a position to take military control over the whole area then effective military control persists.

The ending of occupation is equally pragmatic. Occupation has ended when there is no effective military control over a territory, commonly seen when the occupying power no longer performs the functions of a government.
Read more about the responsibilities of the occupying power

Who decides when occupation ends?

The occupying power cannot unilaterally decide that occupation has ended.

A consensus concerning the status of a territory among the High Contracting Parties to the four Geneva Conventions, may reflect the most accurate legal interpretation about the existence of effective control.

Sources of interpretations are, among others, UN Security Council resolutions, jurisprudence of international tribunals, and precedents such as World War II, Lebanon, and Iraq.

Qalandiya checkpoint, Palestinian election day, 25 January 2006.

Qalandiya checkpoint, Palestinian election day, 25 January 2006. Photo: Matilda Svensson, EAPPI

What is the occupying power responsible for?

To the fullest extent of the means available, the occupying power must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation (article 55 IVGC and article 56 IVGC).

To ICRC and Article 55

To ICRC and Article 56

Let's not forget!

The legality of any particular occupation is regulated by the UN Charter and the law known as "jus ad bellum". It means the legality of the use of force itself and whether the war is just or not. This is different than "jus in bellum" which relates to the legality of the actions of the parties during the armed conflict.

Revised
19/04/2011 Berenice Van Den Driessche ihl@diakonia.se

Easy Guide to International Humanitarian Law in the Occupied Palestinian Territory (oPt)