Under international law, occupations exist when three criteria are satisfied; a territory, a hostile (foreign) army, and the exercise of effective control by the hostile army over that territory. The debate over whether territory is occupied or not usually focuses on the degree of authority exercised by the hostile army in occupying the territory.

This is part of the reason Israel has argued that it had not occupied the Gaza Strip from 2005 until 2023, because its soldiers had disengaged from the territory and Hamas was exercising its authority over the region. However, the physical presence of troops in occupied territory is not required to determine effective control. Israel, by controlling all routes into Gaza and what does or does not go in to Gaza, was in effect conducting a “remotely controlled occupation”.

The law of occupation is an archaic law with some of the key provisions of the regime having been codified in 1907. It continues to govern situations in which a hostile army effectively controls a territory, even when the status of that territory prior to the occupation may have been disputed or there was no prior sovereign, as was the case with Palestine. The legal regime in force has a number of cornerstone provisions which ensure that the occupied population remain protected.

Occupation does not grant title

A key tenet of the law of occupation is the notion that the occupation does not give sovereign title to the occupying power. As a result, the territory is held in a trusteeship until sovereign title over the territory can be decided. The law of occupation seeks to balance three often conflicting and competing interests; that of the ousted sovereign, the occupying power and the occupied population. For instance, in the case of Russia’s occupation of parts of Ukraine, the law aims to safeguard Ukraine’s continuing sovereign title to the territory, the obligations of Russia as an occupying power towards Ukraine as well as the Ukrainians under its control, and the rights of Ukrainians under such control.

This attempt to seek a balance seen in almost every provision of the law which applies to this unique situation. For instance, Article 43 of the Hague Regulations (1907) says that the occupant is to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”. Occupiers have received censure for changing the laws in occupied territory beyond that which is allowed under the law of occupation.

The United States was criticised during its occupation of Iraq in 2003 for violating the regime as it went as far as to establish a new Iraqi constitution. The racism inherent in this was evident when Paul Bremer, the American leader of the Coalition Provisional Authority, said that ‘[m]ost Iraqis have no experience of free thought. They vaguely understand the concept of freedom, but still want us to tell them what to do.’

John Yoo, a US legal official, even stated that “[i]nternational law authorizes a victorious nation both to establish its own temporary occupation government and to make changes in the laws of the defeated nation prior to the conclusion of a treaty of peace”. An entirely incorrect statement on the law of occupation which authorises no such thing. The Americans used this faulty legal interpretation to begin a disastrous process of ‘deBaathification’ and economic reforms which involved the World Bank and International Monetary Fund in the reconstruction of the country and management of its natural resources. The US was condemned for engaging in a ‘transformative occupation’ which changed the laws in occupied territory beyond what the law allows.

The right to resist an occupation

Legal scholar Marco Longobardo notes that ‘occupations are hostile environments in which the local population is not bound by any duty of obedience to the occupying power, but rather, armed resistance against it is widespread and largely supported - even if indirectly - by international law.’ Some argue that the Palestinians have the right to resist an Israeli occupation, especially one that forcibly denies them their right to self-determination and that this right crystallised during the era of decolonisation and is confirmed in a number of UN General Assembly resolutions.

For instance, the UN’s General Assembly Resolution 37/43 entitles an occupied people to resist occupying forces by all available means, “including armed struggle”. General Assembly Resolution 3070 also recognises the resort to armed force by national liberation movements and calls upon member states to contribute moral and material assistance to peoples struggling for their right to self-determination. Additionally, the Geneva Conventions recognise that participating in armed resistance against the occupying power is not a war crime, thereby recognising the legitimacy of armed resistance.

Rights over natural resources

Under the law of occupation, the occupying power must not deplete the natural resources in occupied territory and must also ensure private actors do not exploit these resources. While it is allowed to sustain its occupation by exploiting these natural resources, it must not deplete them, as it does not have sovereignty over that territory. The principle of self-determination further allows a ‘people’ the right to “permanent sovereignty” over natural resources within their borders. International law requires that the occupying power prevent corporations from violating any of these laws.

As a result, Trump’s plan to hand over the Gaza Strip to corporations which would turn it into a Mediterranean resort would likely be at odds with this law. In fact, in the Declaration concerning Permanent sovereignty over natural resources, the General Assembly supported ‘the peoples of the territories under colonial and racial domination and foreign occupation in their struggles to regain effective control over their natural resources’. Longobardo notes that this resolution seems to support regaining control over their natural resources through armed struggle.

The Future of the Law of Occupation

At the core of all occupations, there is a profound conflict of interest between the occupier and the occupied. One of the key issues with the law of occupation is the fact that it envisaged short-term occupations in which the sovereignty of the occupying power needed to be temporary and the ousted sovereign’s interests had to be maintained. However, we now have instances of long-standing and protracted occupations which have lasted for many decades. These include those in Palestine, Western Sahara, and Northern Cyprus. The question arises then whether the law of occupation is ‘fit for purpose’ as it regulates long-term occupations which may be transformative. The continued presence of the occupier in such occupations is generally to the detriment of civilian’s rights and protections. These are likely to continue to be eroded until the territory is returned to its rightful sovereign.

This article by Ayesha Malik was produced with the support of the International Committee of the Red Cross (ICRC) as part of the Legally Speaking podcast series. The views expressed are the author’s own.