Military occupation

As a specific form of IACs, military occupation must fulfil the following cumulative conditions:

The armed forces of a State are physically present in a foreign territory without the consent of the effective local government in place at the time of the invasion;
The effective local government in place at the time of the invasion has been or can be rendered substantially or completely incapable of exerting its powers by virtue of the foreign forces’ unconsented-to presence;
The foreign forces are in a position to exercise authority over the territory concerned (or parts thereof) in lieu of the local government.’¹

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.’² The disputed nature of a territory does not prevent in itself the situation from being classified as a military occupation.³ Moreover, there is growing recognition of the fact that an occupying Power may still bear obligations under the law of occupation even if it has withdrawn its physical presence from occupied territory, to the extent that it remains capable of exercising, and continues to exercise, elements of its authority in place of the local government’.⁴

1
ICRC, Updated Commentary on GC I, 2016, para 304. See also Art 42, Hague Regulations.
2
ICRC, Updated Commentary on GC I, 2016, para 324. See also: Eritrea-Ethiopia Claims Commission, Central Front, Ethiopia’s Claim 2, Partial Award, 2004, para 29.
3
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, paras 95 and 101.
4
ICJ, 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.