The following policy brief discusses the
obligations of Israel as an Occupying Power in the Gaza Strip, the West
Bank and East Jerusalem, based on the central rules and principles contained
in the law of occupation. Following the practice of the United Nations
(UN), this policy brief will refer to these territories as the -Occupied
Palestinian Territory- (OPT).i
The purpose of this brief is to review
and explain the various obligations of Israel in the OPT. It assumes
the full applicability of the laws of occupation to the situation and population
in the OPT. For a discussion of Israeli objections to the applicability
of the Geneva Conventions to the OPT, the reader should consult the policy
brief on the Application of International Humanitarian Law (IHL) to the
OPT.
This policy brief presents first the basic principles of the laws of occupation. It then addresses specific issues relevant to Israel's responsibility as an Occupying Power. Issues specific to the application of IHL to East Jerusalem are dealt with in more detail in the policy brief on the Application of IHL to the OPT.
Laws of Occupation - Basic Principles
1. The law of occupation is one of the oldest and most developed branches of IHL. The law of occupation provides rules regulating the relationship between the Occupying Power and the population of the occupied territory (including refugees and stateless persons), providing protection to the latter against potential abuse of the former; it also regulates the relationship between the Occupying Power and the State whose territory has been occupied.
2. IHL adopts a very practical definition of occupation - the actual control over a territory by a foreign military force. Occupation does not require any form of declaration or intent by the invading force, and the motives for the presence of the foreign military force are irrelevant.
3. Occupation does not confer sovereignty over the occupied territory to the Occupying Power. The question of the legality or illegality of the invasion is also irrelevant to the application of IHL.
4. The law of occupation applies whenever, during an armed conflict, the territory of a State comes under the control of a foreign power. The law of occupation also applies even if the occupying force meets no or little armed resistance.
5. Occupation ends either:
- When the foreign military forces no longer exert control over enemy territory (i.e. if they have withdrawn); or,
- The foreign force no longer exercises the functions of government in the occupied territory and public authority has returned to the sovereign state.
6. The Occupying Power is responsible for ensuring public order and safety in the occupied territories, and should not interfere with the social and political fabric of society unless absolutely prevented from doing so. On the other hand, the law of occupation does grant the Occupying Power wide scope to take measures to ensure the security of its forces.
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