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