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Occupied territory

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For territories occupied by Israel, see Israeli-occupied territories.

Occupied territory is territory under military occupation. Occupation 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. At the end of a war, usually the victorious side is in possession of territory previously possessed by another state. This territory is known as occupied territory. Acquisition of occupied territory is incidental to a war, where the military forces of the occupying power come into the possession of territory previously held by another state. 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.[citation needed] Examples of occupied territory 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, and the Israeli-occupied territories after the Six-Day War of 1967.

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.[2] GCIV Article 47, the first paragraph in Section III: Occupied territories, restricted the territorial gains which could be made through war,[2] and Article 49 prohibits mass movement of people out of or into occupied territory.[3] 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 territory 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 rather than military laws of the state that has integrated the occupied territory into their own territory.[4][5][6][7]

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.[citation needed]

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

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);[citation needed]
  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.[citation needed] 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.

Disagreement use of term

Palestine

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,[8] 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.'

Israeli Position

After the Six-day War in 1967, Israeli troops occupied the Gaza Strip, the West Bank, and the Golan Heights. However, the use of the terms "ocuppied" for these territories has been disputed. Paul S. Riebenfeld, an international lawyer, who represented Jewish interests at the League of Nations, argued that the West Bank and the Gaza Strip do not belong to any other sovereign state, are part of former Mandate Palestine, and therefore fall legitimately within Israel's jurisdiction.

Whether or not Israel still occupies the Gaza Strip, following its unilateral disengagement from there, is disputed.[9][10][11][12][13][14][15][16][17] For more information see also Palestinian National Authority.

Israeli Soldiers in Bethlehem, 1978.


Jammu and Kashmir

Jammu and Kashmir is a disputed and occupied territory since 1947, claimed by the government of India as part of its country while both the Peoples' Republic of China and Pakistan dispute India's claims. Because of this the people of Azad Jammu and Kashmir do not recognise the occupation and the Pakistani Media specifically refers to this area under Indian military control as (Urdu:مقبوضہ کشمیر) - Literally Occupied Kashmir.

Western Sahara

Western Sahara is considered an occupied territory by the Polisario, the Sahrawi Arab Democratic Republic government in exile in Algeria, the United Nations,[18] and some other groups. International bodies see Morocco as the de facto administrative power pending a solution to the conflict. The referendum that the UN wants to hold has been effectively blocked, and many of the incidents reported to have occurred in the territory[19] are consistent with an unaccountable military occupation.

Most of the territory claimed by the SADR in Western Sahara is currently under the unrecognized but effective sovereignty of Morocco. They do not recognize the SADR, though dozens of countries do.[20]

Cyprus

The northern part of the Mediterranean island of Cyprus has been occupied by the Turkish military since 1974. The Turkish invasion caused a massive exodus of Greek Cypriots from the north, followed by a similar movement of Turkish Cypriots from the south. The Turkish government has initiated a policy of colonisation by settlers from various parts of Turkey, leading to a demographic alteration of the occupied territories.

Abkhazia and South Ossetia

After the August 2008 war, Abkhazia and South Ossetia were declared by Georgia as its territories occupied by the Russian Federation which recognizes both these entities as independent states. On October 23, 2008, Georgia endorsed "The Law on Occupied Territories" defining "the status of territories occupied as a result of the military aggression of the Russian Federation" and envisaging "a special legal regime" on these territories.[21] In March 2009, the Venice Commission, the Council of Europe's advisory body on constitutional and legal issues, asked by Georgia to opine on the law, said that the criminalisation of entry into the occupied territories without making no explicit exceptions for emergency situations or humanitarian aid was a matter of concern.[22]

References

  1. ^ 'Hague IV, MILITARY AUTHORITY OVER THE TERRITORY OF THE HOSTILE STATE, Article 42'
  2. ^ a b Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.Commentary on Part III : Status and treatment of protected persons #Section III : Occupied territories Art. 47 by the ICRC
  3. ^ Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.Commentary on Part III : Status and treatment of protected persons #Section III : Occupied territories Art. 49 by the ICRC
  4. ^ John Dugard (professor of international law at the University of Leiden) An illegal annexation : Tear down Israel's wall International Herald Tribune, 2 August 2003
  5. ^ John Dugard (The Special Rapporteur of the Commission on Human Rights for the occupied Palestinian territory) Israel uses excessive force and annexation in Palestinian territories – UN report, UN News Centre. Accessed 11 July 2008.
  6. ^ Paul Lewis, Confrontation in the Gulf; U.N. Council Declares Void Iraqi Annexation of Kuwait, The New York Times, 10 August 1990
  7. ^ R. W. Apple Jr. After the war: The Overview; Iraq Disavows annexation, pledging to repay Kuwait; Rebellion my be subsiding, The New York Times, 6 March 1991
  8. ^ 'Letter dated 29 January 2004 from the Deputy Director General and Legal Advisor of the Ministry of Foreign Affairs, together with the Written Statement of the Government of Israel'
  9. ^ Dore Gold, JCPA Legal Acrobatics: The Palestinian Claim that Gaza is Still "Occupied" Even After Israel Withdraws, Jerusalem Center for Public Affairs, Vol. 5, No. 3, August 26, 2005.
  10. ^ International Law and Gaza: The Assault on Israel's Right to Self-Defense, Jerusalem Center for Public Affairs, Vol. 7, No. 29 28 January 2008.
  11. ^ Israeli MFA Address by Israeli Foreign Minister Livni to the 8th Herzliya Conference, Ministry of Foreign Affairs (Israel), January 22, 2008.
  12. ^ Panelists Disagree Over Gaza’s Occupation Status, University of Virginia School of Law, November 17, 2005.
  13. ^ "Israel: 'Disengagement' Will Not End Gaza Occupation" Human Rights Watch. October 29, 2004
  14. ^ "Human Rights Council Special Session on the Occupied Palestinian Territories" July 6, 2006"
  15. ^ Office for the Coordination of Humanitarian Affairs office on Occupied Palestinian Territory web site.
  16. ^ Summary of the Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, July 9, 2004.
  17. ^ Richard Falk, Statement by Prof. Richard Falk, United Nations Special Rapporteur for Human Rights in the Occupied Territories, United Nations Human Rights Council, December 27, 2008.
  18. ^ UN General Assembly Resolution 34/37 - November 21, 1979 and UN General Assembly Resolution 35/19 - November 11, 1980
  19. ^ Western Sahara "Impunity for past crimes remained a serious concern, particularly since some alleged perpetrators continued to be members, or even high-ranking officials, of the security forces.". Verified 4 Oct 2007.
  20. ^ Third World Traveller Intifada in Western Sahara, Morocco seals off the occupied territory, New Internationalist magazine, August 2005. Verified 4 Oct 2007.
  21. ^ The law of Georgia On Occupied Territories. Venice Commission. 19 January 2009
  22. ^ Opinion on the Law on occupied territories of Georgia adopted by the Venice Commission. Venice Commission. 17 March 2009
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