Keerat Singh is a junior in the School of Foreign Service studying Business and Global Affairs and serves as Senior Blog Editor for GUULR.
Occupation law, under Article 42 of the 1907 Hague Regulations, defines an occupied territory as one that is “placed under the authority of the hostile army,” where that authority “has been established and can be exercised.”[1] The regulations respecting the laws and customs of war on land, outlined in the Geneva Conventions of 1949, apply to any territory occupied during international hostilities.[2]
This body of law does not consider the legality of how a territory came to be occupied (the legality of such encroachments is regulated by the UN charter).[3] Regardless of the legality of an occupation, occupation law begins to apply as soon as a people are living under the authority of a hostile regime, as it is motivated by humanitarian principles, seeking to ensure humanitarian treatment for all those living under occupation.[4]
Occupation law, outlined in the 1907 Hague Regulations, the Fourth Geneva Convention, Additional Protocol I, and customary international humanitarian law, stresses that occupation must be restricted to a temporary situation and that the occupant should not acquire sovereignty over the territory.[5] It also states that the occupying power should provide for the public order, safety, public hygiene, food, and medical care of the population under occupation.[6] Some actions prohibited for the occupying power to take part in include collective punishment, hostage-taking, confiscation of private property, destruction or seizure of “enemy” property, and the transferring of their civilian population into the occupied territory.[7]
The enforcement of international humanitarian law on international situations constituting occupation has relied heavily upon judicial processes, which are often ineffective.[8] The conventional enforcement mechanisms for international humanitarian law include different degrees of sanctioning, from State responsibility to liability for reparations.[9] However, these mechanisms have not been activated to ensure compliance with occupation law, resulting in a weakly enforced and routinely violated section of laws. In fact, the routine disrespect for occupation law in certain regions “barely gives rise to criminal proceedings” in many cases.[10]
Perhaps the largest violator of occupation law today is the State of Israel. Israel has normalized an apartheid state that constantly engages in the persecution of Palestinians living in the Occupied Palestinian Territories (OPT).[11] The state is based on settler-colonialism, the practice of replacing an indigenous population with an invasive settler society through means of repression and genocide of the indigenous peoples.[12] The violent persecution obviously defies international humanitarian law; however, the practice itself of settler-colonialism also stands in clear violation of occupation law, as it seeks to confiscate private property from Palestinians and transfer the Israeli population into internationally recognized Palestinian territories.
The OPT comprises the West Bank, including East Jerusalem, and the Gaza Strip. Despite Israel annexing East Jerusalem in 1967, international law still considers it an occupied territory.[13] Israel retains primary control over the OPT, regulating its borders, airspace, security, the movement of all people and goods, and the legal status of every resident.[14] As Israeli settlers continue to encroach on OPT land, Israeli law confers them a superior status, as compared to Palestinians, with a much larger provision of civil rights, land access, and freedom of movement guaranteed to them.[15] Palestinians are therefore relegated to second-class citizens in the small portion of territory they have left.[16]
One of the more recent violations of occupation law that Israel has committed is the forced evictions of Palestinians from Sheikh Jarrah, a predominantly Palestinian neighborhood in East Jerusalem. Mohammed el-Kurd, a Sheikh Jarrah resident, was asked on CNN if he supported the “violent” protests in response to the forced evictions of his community members. He responded, “Do you support the violent dispossession of me and my family?”[17]
Liberation for Palestinians from this apartheid regime will not be easily achieved. However, el–Kurd believes that people are increasingly beginning to see through the myths propagated by the Israeli state and the United States. He told the CNN anchor that people are beginning to “call an occupation for what it is, and call an aggressor for what it is.”[18] The international community has the imperative and ability to put actionable sanctions behind its occupation laws and end the Israeli occupation of Palestine.
[1] Geneva Conventions of 1949 and Additional Protocols art. 42, Oct. 18, 1907.
[2] Occupation and international humanitarian law: questions and answers, INTERNATIONAL COMMITTEE OF THE RED CROSS (Apr. 8, 2004), https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Tristan Ferraro, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 1-2 ISRAEL L. REV. 331, 331-357 (2008).
[9] Gentian Zyberi, Enforcement of International Humanitarian Law, INTERNATIONAL HUMAN RIGHTS INSTITUTIONS, TRIBUNALS, AND COURTS. 1, 1-24 (2018).
[10] Tristan Ferraro, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 1-2 ISRAEL L. REV. 331, 331-357 (2008).
[11] A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, HUMAN RIGHTS WATCH (Apr. 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution.
[12] Amanda Morris, What is Settler-Colonialism?, LEARNING FOR JUSTICE (Jan. 22, 2019), https://www.learningforjustice.org/magazine/what-is-settlercolonialism.
[13] Ayesha Kuwari, Israel’s Violations of International Law in the Occupied Palestinian Territories, HUMAN RIGHTS PULSE (May 21, 2021), https://www.humanrightspulse.com/mastercontentblog/israels-violations-of-international-law-in-the-occupied-palestinian-territories.
[14] A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, HUMAN RIGHTS WATCH (Apr. 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution.
[15] Id.
[16] Id.
[17] CNN Newsroom, Israeli-Palestinian Clashes Escalate Dramatically, FACEBOOK (May. 11, 2021), https://www.facebook.com/JustVision/videos/259761829215713/.
[18] Id.
