Q&A: The occupation in law

Al Jazeera looks at international law and Israel's occupation of Palestinian land.

    Under international law the occupier should end the occupation as quickly as possible [EPA]

    The term "occupation" describes a regime of control over territory and population by a foreign sovereign's military.

    The Hague Regulations of 1907 set out the basic legal standard:

    "Territory is occupied when it has actually been placed under the authority of the hostile army. The occupation only extends to the territory where such authority has been established and can be exercised."

    This definition has been affirmed and expounded on at the Nuremberg Tribunal, in the Fourth Geneva Convention (1949) and in its First Additional Protocol (1979), in state practice, in United Nations' resolutions and in the judgment of the International Court of Justice.
    Are the West Bank and East Jerusalem occupied?
    Yes. Since 1967, a number of international organisations - including the US and the Israeli Supreme Court, has consistently reaffirmed that the West Bank and Gaza, including East Jerusalem, are "occupied" as a matter of law.

    The UN Security Council, the General Assembly and the International Court of Justice all reiterated in 2004 that the Palestinian Territories are "occupied" as a matter of law.  

    Is Gaza still occupied?
    Yes. According to international law Gaza is still occupied even though Israeli forces pulled out in 2005. This is the case for three reasons:

    1. Because the Oslo accords specifically affirmed that the Palestinian Territories would remain under Israeli occupation until the implementation of a final peace treaty.

    The Gaza Strip and the West Bank will continue to be considered one territorial unit, and that withdrawal from Palestinian population centres will do nothing "to change the status" of the West Bank and Gaza Strip for the duration of the accords.

    Israeli soldiers are still able to enter
    the Gaza Strip at will [AP]
    2. Gazans are still subject to the control of the Israeli military which retains the ability and right to enter the Gaza Strip at will.

    Furthermore, Israel retains control over all of Gaza's public utilities, airspace, sea shore, and borders, including Gaza's border with Egypt.

    It is Israel that both sets and collects Gaza's taxes and customs and controls its population registry.

    It controls Gaza's international relations, whether or not they can open a seaport or an airport, and continues its military activity along the Gaza Strip's coastline.

    Taken together, these powers mean that all goods, services and people entering or leaving Gaza are subject to Israeli control.

    3. Because the conditions which constitute the end of an occupation have been defined in international law and in Gaza's case those conditions have not been met. 

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    The Nuremburg Tribunal expounded upon The Hague Regulations' basic definition of occupation in order to ascertain when occupation ends.

    It held that "the test for application of the legal regime of occupation is not whether the occupying power fails to exercise effective control over the territory, but whether it has the ability to exercise such power."

    In that case, the tribunal had to decide whether Germany's occupation of Greece and Yugoslavia had ended when Germany ceded de facto control to non-German forces of certain territories.

    Even though Germany did not actually control those areas, the tribunal held that Germany indeed remained the "occupying power" - both in Greece and Yugoslavia generally and in the Territories to which it had ceded control - since it could have re-entered and controlled those territories at will. 

    Is ongoing, open-ended occupation legal?

    Settlements in East Jerusalem
    are set to be expanded [EPA]

    No.  Under international law the occupier is obligated to end the occupation as quickly as possible.

    The occupier has to safeguard the rights of the occupied population during the temporary period in which the occupation is maintained.  
    Continuing an occupation is illegal because the occupier cannot usurp by force the rights of the occupied people, who retain title to their land and resources by virtue of the fundamental right to self-determination.

    UN Resolution 242 of 1967, which calls for Israeli withdrawal from territories occupied during the 1967 June War, is based on the principle of what it calls the "inadmissibility of the acquisition of territory by war."

    Can the occupier settle on the occupied land?

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    No. Any move by the occupier to infringe of the rights of the occupied or change the status of the occupied land through, for example, annexation, confiscation of resources, population transfer, or destruction of civilian property is illegal under the Fourth Geneva Convention to which Israel is a signatory. 

    Expropriating the property of an occupied people is also forbidden by the Hague Regulations. 

    This means all Israeli settlements in the West Bank, Golan Heights and East Jerusalem are illegal. 

    All house demolitions or forced relocations in these areas are illegal. 
    Is violent resistance against an occupation legal?
    Yes.  People have a right to resist "colonial domination and alien occupation and racist regimes in the exercise of their right of self-determination as enshrined in the Charter of the UN" and/or to resist illegal practices of the occupier according to Article 1(4) of Protocol 1 of the Geneva Conventions.  

    Territories before the 1967 war
    Palestinians fighting Israel to achieve self-determination have the legal status of combatants as defined by the UN General Assembly in 1973.

    The Palestinians' struggle is considered legitimate and in full accord with the principles of international law. 
    Any attempt to suppress a struggle against a colonial or racist regime or alien occupation is incompatible with the UN Charter, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples and constitutes in itself a threat to peace and security.  

    Is it legal to target Israeli civilians?

    No. International humanitarian law prohibits attacks on civilians who are not directly participating in hostilities. 

    Parties to a conflict are obliged to distinguish between civilian and military infrastructure, to respect the principle of proportionality in all military operations and to refrain from any form of collective punishment against a population.
    That means there is no protection under international law for launching Qassam rockets on Israeli population centres.

    Under international law, this is not protected or justified.  
    Are Israeli air strikes or targeted assassinations legal?
    No. For various reasons, international law tends to support the conclusion that Israeli air strikes and targeted assassinations are illegal. 

    Sheikh Ahmed Yassin, a former Hamas leader, 
    is among those assassinated by Israel [AP]

    From a legal standpoint, there are three critical issues that determine the legality of these policies: the law of self-defence; international humanitarian law; and the principle of proportionality.
    1.  Self-defence. Defenders of these Israeli practices cite Article 51 of the UN Charter, which states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations."

    However, Article 51 is in reference to self-defence from an armed attack by a state. 

    Hamas, Palestine, etc are not a state, they are an occupied people, so Article 51 does not exactly apply and Israel is left with the option of dealing with Palestinian attacks as a law enforcement problem. 

    In this case, Article 51 is inapplicable which makes the targeted killings "unlawful reprisals" or "extrajudicial acts of homicide", both of which are prohibited by international law. 
    2. International humanitarian law. Many international law experts agree the Israeli Palestinian conflict is an "armed conflict" to which the laws of war apply.

    Most of these experts agree that Palestinians fighters who belong to a force are "combatants" -they have a command structure, wear fixed distinctive signs and carry their weapons openly, they deserve POW status if captured and are immune from prosecution for fighting. 

    However, Israel does not deal with enemy Palestinian combatants as soldiers, nor does it deal with them exclusively as civilians/criminal gangs.

    Israel occupied swathes of territory in
    the wake of its 1967 military victory
    Israel blurs the line between policing and waging war, by treating the Palestinians as combatants by targeting and killing them during fighting, then treating them like civilians/criminals and punishing them for their acts afterwards. 

    This means Palestinians fighting for self determination have neither the rights of soldiers, nor the rights of civilians.

    If Palestinian fighters are "combatants" then they have the rights of soldiers including POW status. 

    If Palestinian fighters are criminals then they are civilians and killing them without a court trial is completely illegal.

    The Geneva Conventions on the Law of War, particularly common Article 3, prohibit the intentional killing of civilians. 

    Common Article 3 prohibits: "(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;" and "(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples." 

    Other international human rights instruments, such as the International Covenant on Civil and Political Rights, state that arbitrary execution is unlawful.
    3.  Proportionality. Any given action by a state must be substantially proportional to the given threat or wrong.

    This principle also finds support in the Hague Regulations of 1907 which prohibit the use of arms, projectiles, or material calculated to cause unnecessary suffering. 

    One could argue that because Israel's policy of targeted killing has resulted in the deaths of multiple civilians, and because they are the occupying power and have the far less violent option of simply arresting the offending individuals, an air raid on a population centre is always disproportionate.

    SOURCE: Al Jazeera


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