OCCUPIED TERITORITY

Occupied territories is a term of art in international law. In accordance with Article 42 of the Laws and Customs of War on Land (Fourth Hague Convention); October 18, 1907^[1], 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.

The Kellogg-Briand Pact of 1928 made the threat or use of military force in contravention of international law^[2], as well as territorial acquisitions resulting from it unlawful. Though that Pact was not universally subscribed to, and was in fact gravely breached by its signatories, subsequent treaty law, specifically the Charter of the United Nations, done at San Francisco in 1945, and adhered to by nearly all nations, contains a similar prohibition.

This was soon followed by the judgment of the International Military Tribunal at Nuremberg in the matter of several of the political and military leaders of the former Nazi entity, regarding crimes against peace, as well as other charges under the law of war and the law of nations, including war crimes, crimes against humanity, and genocide. The Tribunal declared that waging a war of aggression and territorial aggrandizement was not only criminal, but that "to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Those found guilty for planning the war of aggression in question were hanged or received long prison sentences. As the judgement of the IMT was recognized as fully declarative of the law of nations and the laws and customs of war, the prohibition against wars of aggression thus entered into the customary international law, making it binding on all civilized nations and peoples without exclusion, reservation, or exception.

It must be noted that the grossly criminal act of levying a war of aggression is distinguished from the war without legal standing, which refers to military action not done for purposes of conquest and gross territorial gain, and not legitimated by self-defense, and not authorized by Article 51 or the Security Council. This class of wars might include the settlement of long-running territorial disputes, suppression or punishment of atrocities or outrages against a belligerent nation, suppression of alleged threats to national security, defense of allies or allied peoples, peace-enforcement or peace-keeping, or prejudicial resolution of ideological differences. Wars without legal standing are unlawful; however, they are common, and not criminal like a war of aggression is. Wars without legal standing often result in the occupation of territory by the victorious nation in such a war.

At the end of a war, usually the victorious side is in possession of territories previously possessed by another state. These territories are known as occupied territories. Acquisition of occupied territories is incidental to a war, where the military forces of the occupying power come into the possession of territories previously held by another state. Military occupation is usually temporary; and under the subsequent articles of the Hague convention (articles 43, 44, and etc.), the status quo must be maintained pending the signing of a peace treaty, the resolution of specific conditions outlined in a peace treaty, or the formation of a new civilian government.

Examples of occupied territories include Germany and Japan after World War II; Cambodia by Vietnam from 1979 until 1989; Iraq after the 2003 invasion by the United States and allied forces removed the government of Saddam Hussein from power, and the Israeli-occupied territories.

During World War II the use of annexation deprived whole populations of the safeguards provided by international laws governing military occupations. Changes were introduced to international law through the Fourth Geneva Convention that makes it much more difficult for a state to bypass international law through the use of annexation.^[3] GCIV Article 47, the first paragraph in Section III: Occupied territories, restricted the territorial gains which could be made through war,^[3] and Article 49 prohibits mass movement of people out of or into occupied territory.^[4]

If a state unilaterally declares a territory that has been under military occupation to be annexed, bodies such as the United Nations Security Council frequently describe such territories as "occupied" when that annexation is in breach of international law or not accepted by the United Nations General Assembly, even if the territory is governed through the civil laws of the state that has integrated the occupied territory into their own territories.^[5][6][7][8]

History and definitions

Generally, any disputed territory can be seen as occupied by the party that lacks control over it at that moment. Thus, the Germanic tribes displaced the Celts of central Europe, and Egypt was conquered and absorbed in the 7th century by Arabs who were not its original population. This is particularly true of the region between Egypt and Turkey where repeated population movements and military conquests have occurred during the past several thousand years.

Regarding the West Bank (58% Israeli-administered, with the remainder under Israeli suzerainty), Gaza Strip (whose land and sea access is blockaded by Israel) and Israel proper, the use of this expression is often controversial and hotly disputed.

Additionally, occupation has two distinct meanings:

1. The state of being lived in (as in: "Isle of Man is occupied by the Manx", or this house is occupied by the Smith family);
2. The state of military control following conquest by war but prior to annexation.

Although (1) and (2) are obviously distinct, they are sometimes intermingled. Under (1), the territory in question is under normal civilian law; under (2) the territory is usually under military law within the terms of the Laws of war, such as the Fourth Geneva Convention (according to the UN).

Occupied territories since 1907

For a list of occupied territories since the Hague Convention of 1907 Laws and Customs of War on Land (Hague IV); October 18, 1907 first clarified and supplemented the customary laws of belligerent military occupation see the list of military occupations and the list of territorial disputes.

Disputed

International Court of Justice Opinion

In July 2004, The International Court of Justice delivered an Advisory Opinion on the 'Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory'. The Court observed that under customary international law as reflected in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907, territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.

The State of Israel raised a number of exceptions and objections,^[9] but the Court found them unpersuasive. The Court ruled that territories had been occupied by the Israeli armed forces in 1967, during the conflict between Israel and Jordan, and that subsequent events in those territories, had done nothing to alter the situation. 'All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.'