Belligerent occupation
What the term "occupation" (belligerent occupation or military occupation) actually means in international law in general, and in the context of the Geneva Conventions in particular.
It must be said that before 1967, this term did not cause too many difficulties, and, in general, all specialists understood what it meant. Until Israel regained Jerusalem.
Since then, UN documents have used the completely absurd term from a legal point of view, "occupied Palestinian territory, including East Jerusalem," and the Gaza Strip was called "territory occupied by Israel" even before the 2023 war, despite the fact that after 2005 there was not a single Israeli soldier there.
Since we have become the reason for obscuring the meaning of this international legal term, we will have to explain what is actually meant by "occupation" in international conventions.
(1) The Hague Convention
The basic concept of "occupation" is contained in Article 42 of the 1907 Hague Convention respecting the Laws and Customs of War on Land:
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.
Israel is not a party to this Convention. But, although its Article 2 explicitly states that its provisions "do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention," many, including the Israeli Supreme Court, insist that its provisions apply to Israel's "occupation of the Palestinian territories."
Of course, no one, including the Israeli Supreme Court, can explain to whom exactly the Israeli army is "hostile" in these territories, especially given Israel's peace treaties with Egypt (1979), Jordan (1994), and the Oslo Accords with the Palestine Liberation Organization (1994).
(2) The Geneva Conventions
In each of the four Geneva Conventions of 1949, namely:
Geneva Convention (III) relative to the Treatment of Prisoners of War
Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War
part 2 of Article 2 contains the same wording:
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party.
The expression "High Contracting Party" denotes a state that is a party to the convention.
It is specifically a state, and a party to the Convention, not partisan formations, not liberation movements, not a people or representatives of a people, not political organizations, and so on.
Thus, the term "occupation" in the context of the Geneva Conventions means exclusively a situation where one state occupies the territory of another state, which is also a party to the Convention.
That is, one can speak, for example, of the right of the Catalan people to self-determination, and demand on this basis the granting of independence to Catalonia, but the existence of the right to self-determination does not impose on Spain the obligations of an occupying power provided for by the Geneva Conventions in the territory of Catalonia.
Thus, contrary to the false opinions and narratives that have spread since 1967, the term "occupation" means a situation when:
a) many other states are dissatisfied with the very fact of the existence of some state, and/or want it to cease to exist; b) many states do not want some state to own some territory; c) someone wants to create their own state on the territory of an existing state; d) an autonomy has been created on the territory of some state; e) a state has established military control over a territory that is not the territory of another state (for example, its flotilla is in neutral waters and actually controls a certain area of them);
That is, if, for example, I want to found my own kingdom on the territory of Bavaria, this will not legally mean that the FRG from that moment must be considered an occupier of the territory of Bavaria and bear the obligations of an occupying state in that territory. I understand that this sounds shocking to most international lawyers dealing with the "Palestine problem," but this is exactly the case.
Law is based on an understanding of general norms that work the same way in the same situations. That is, when we analyze and draw conclusions about a situation, we indicate the norm applicable to that situation, and based on it, we draw conclusions.
Now, alas, the opposite approach prevails: first, the desired conclusion is formulated, and then, from the fact that the conclusion is such, it is assumed that the norms of law must be such that they justify this desired conclusion.
A striking example of this approach is the advisory opinion of the International Court of Justice on the issue of "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory."
The UN General Assembly addressed the ICJ with a question that was formulated as follows:
What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?
That is, the question was formulated in such a way as to set the desired conclusions in the question itself, to which the court would have to come, and the court would only have to come up with grounds for this desired conclusion.
It is not difficult to guess that the advisory opinion issued by the "judges" of the International Court of Justice on such a request could not be a legal opinion in the classical sense (as stated above).
That is, the court did not determine whether an occupation was taking place based on the norms of the Geneva Conventions, but on the contrary, concluded that since an occupation was taking place, the norms of the conventions regarding occupation should be applied.
Moreover, the court did not even ask the question of which state's territory Israel occupied in 1967 (see paragraphs 73, 95), because with this approach it is not important, what is important is that it "occupied."
And, in its opinion, the Court wrote (para. 101):
The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.
This conclusion of the Court is a logical and legal catastrophe. This position nullifies the meaning of the very mechanism for applying the Geneva Conventions, replacing it with politically biased fantasies.
If, in order to recognize control over a territory as "occupation," it is not necessary to find out the status of these territories before that, then the occupation of the city of Kherson by Ukrainian troops on November 11, 2022, should also be recognized as "occupation" - after all, the previous status of this territory is "not important."
In my practice, there was once a case when at the beginning of a court case on embezzlement, I filed a motion with the court to clarify: to whom does the property belong in the embezzlement of which my client is accused - if not to himself, and who, therefore, is the victim in the case, if not the accused himself. And neither the prosecutor nor the court could explain this then.
The situation is exactly the same as with the accusation of Israel of occupying a territory that is unclear to whom and on what basis it belongs, if not to Israel itself.
Fortunately, this shameful advisory opinion of the International Court of Justice does not oblige anyone to anything, but only serves as an example on which one can demonstrate what a legally untenable analysis of a situation by a court looks like.
Another common anti-legal method of argumentation is the substitution of the analysis of norms with the frequency of repetition of a value judgment.
Thus, proving that there is an "occupation" of "Palestinian territory" by Israel comes down to everyone repeating "occupation, occupation, occupation" in every way, and then simply referring to the fact that "everyone says this, everyone recognizes this."
And this is not a joke, this is exactly how, for example, it was argued in the International Criminal Court that an occupation of "Palestinian territory" by Israel was taking place:
"[t]he West Bank, including East Jerusalem, and the Gaza Strip, have been consistently referred to by the international community, including the UN General Assembly and the UN Security Council, as the Occupied Palestinian Territory, leaving no doubt over who is entitled to that particular territory"
(para. 34 of the decision of the ICC of February 05, 2021)
In reality, the frequent repetition of "occupation, occupation, occupation; everyone knows that this is an occupation; everyone recognizes that this is an occupation" does not legally turn a territory into an occupied one.
International law is not based on the consensus of the media or politicians, but on the operation of norms that can be formulated and that can be applied to all similar cases equally. Only such norms are actually the law.
Law is determined not by what is "recognized" or frequently repeated, but by what follows from the norms and principles of international law. This is how a lawyer should think if he does not want to be a hostage to current political clichés.