Occupation and international humanitarian law

ICRC Gaza CityThe International Committee of the Red Cross’s legal team provides a succinct explanation of what defines occupation, the laws that apply, and how people are to be protected (“Occupation and international humanitarian law: questions and answers,” International Committee of the Red Cross, 8 March 2004).

What is an occupation?

Article 42 of the 1907 Hague Regulations (HR) states that 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.”

Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful.

Therefore, for the applicability of the law of occupation, it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation is primarily motivated by humanitarian considerations, it is solely the facts on the ground that determines its application.

What are the most important principles governing occupation?

The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (arts 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78), as well as in certain provisions of Additional Protocol I and customary international humanitarian law.

Agreements concluded between the occupying power and the local authorities cannot deprive the population of occupied territory of the protection afforded by international humanitarian law (GC IV, art. 47) and protected persons themselves can in no circumstances renounce their rights (GC IV, art. 8).

Some of the main rules of the law applicable in case of occupation state that:

  • The occupant does not acquire sovereignty over the territory.
  • The occupying power must take measures to restore and ensure, as far as possible, public order and safety.
  • To the fullest extent of the means available to it, 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.
  • Collective or individual forcible transfers of population from and within the occupied territory are prohibited.
  • Transfers of the civilian population of the occupying power into the occupied territory, regardless whether forcible or voluntary are prohibited.
  • Collective punishment is prohibited.
  • The confiscation of private property by the occupant is prohibited.

Read Canada’s official policy concerning the Middle East peace process here.

Photo credit: ICRC

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