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War Watch
Legal Explainers

Military occupation

When an active IAC involves a military occupation, the situation is usually classified as a single IAC. As a specific form of IAC, military occupation must fulfil all of the three following conditions:

  • The armed forces of a State are present in a foreign territory without the valid consent of the government that was in place at the time of the invasion;
  • The government that was in place at the time of the invasion has been rendered substantially or completely incapable of exerting its powers by virtue of the presence of the foreign forces;
  • The foreign forces are in a position to exercise authority over the territory concerned – or parts thereof – in lieu of the government.1ICRC, Updated Commentary on Article 2 of Geneva Convention I of 1949, Geneva, 2016, para 304. See also Art 42, 1907 Hague Regulations.

In other words, a territory is considered as occupied ‘as soon as it is under the effective control of a State that is not the recognized sovereign of the territory.’ The disputed nature of a territory does not prevent in itself the situation from being classified as a military occupation.2ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, paras 95 and 101. Moreover, an occupying Power may still bear obligations under the law of occupation even if it has withdrawn its physical presence from occupied territory, to the extent that it remains capable of exercising elements of its authority in place of the local government’.3ICJ, Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Advisory Opinion, 19 July 2024, para 92; ICRC, Updated Commentary on Article 2 of Geneva Convention IV of 1949, Geneva, 2025, paras 378-383.

Consent given to another State to engage in military operations on the territory of a State can be withdrawn. Should the foreign State remain, a military occupation will exist. In addition, an occupation by proxy – through an armed group – occurs at any time where the group that effectively controls a territory is under the overall control of a foreign State.4 ICTY, Tadić, Trial Judgment, 1997, para. 584; ICJ, Armed Activities on the Territory of the Congo case, Judgment, 2005, paras 160 and 177; ICRC, Updated Commentary to GC IV, paras 399–403; ICRC, ‘How is the Term “Armed Conflict” Defined in International Humanitarian Law’, 2024, p 12.  A fortiori, the same result would take place if the local organized armed groups or de facto authorities who exercise effective control over territory are in a situation of complete dependence on, or effective control by, that State.