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.It is commonly agreed that, at its core, territory will be considered occupied when it is under the “effective control” of the foreign army. By necessary implication, therefore, occupation does not extend to territory where such authority is no longer established and cannot any longer be exercised.
the question of when an occupation can be said to have begun, or ended, is sometimes easy to answer but is by no means always so. Even when it can be answered with confidence, there may still be many gradations between direct foreign military control on the one hand and complete independence and freedom from foreign military forces on the other. (260)Similarly, in an article on the termination of occupation, Benvenisti notes that “unilateral withdrawals can be events as painful as other situations of political transition in which the protection of individual rights is particularly important”, underscoring that “the determination whether such control exists or not at the relevant times and in the relevant place will be based on a case by case analysis.” Whilst the law of occupation does not explicitly provide for a "transitional" legal framework that regulates the process of termination, the simplicity of the above mentioned criteria for termination falls short of answering more demanding practical questions, such as: What duties does an occupying power have during the transition to restoration of lawful sovereignty? How can occupation law be applied to situations in which an occupying power has partially retreated but continues to exercise governmental functions?
So, according to the Israeli government, it may control many of the spheres of life that determine whether civilians will lead normal lives, including the movement of persons and goods critical to the economy, educational system, family unity, and civil society, but may use such control to disrupt normal life in Gaza, as long as it allows in basic foodstuffs and other humanitarian necessities.
That doesn’t seem right to me as an activist who cares deeply about human rights, and as a lawyer specializing in international humanitarian law, I think it reflects a misunderstanding of the meaning and purpose of the law of occupation.I am delighted to announce that over the next few days Opinio Juris will be hosting a symposium on what is increasingly called, following Tel Aviv University's Aeyal Gross, the "functional approach" to the law of occupation. Here is the description that was sent to the contributors: Occupation law has undergone significant evolution in modern times, and cases such as Iraq...
I generally subscribe to a constructivist theory of international relations. On many issues I do not think state interests are fixed and this fluidity allows a space for norm entrepreneurs to alter state preferences. With any successful campaign, specific actors promote ideas that catch fire and create a norm cascade reflected in consensus on the appropriate path. That consensus often...
Opinio Juris is pleased to announce an online symposium addressing social activism and international law. As our readers know, Kony 2012 was a YouTube sensation, spreading faster than any video in history. Although the details are airbrushed, the central theme of the video is about international law. The key idea of the video is that the indicted fugitive Joseph Kony...
[Hannah L. Buxbaum is Interim Dean and John E. Schiller Chair in Legal Ethics, Indiana University Maurer School of Law.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. Thank you to Opinio Juris for hosting this online discussion and...