Article 42 of the Hague Regulations (HR), annexed to the 1907 Hague Convention IV, provides that a territory is considered occupied ‘when it is actually placed under the authority of the hostile army.’ In such circumstances, the relevant provisions governing military occupation become applicable, as codified in the HR (Articles 42-56), the Fourth Geneva Convention (GC IV) (Part II, Section III), and the Addition Protocol I (AP I) (Articles 14-17 and Part IV).
It is widely asserted that military occupation, also referred to as ‘belligerent occupation’, must be of a temporary nature (see the 2024 Advisory Opinion of 19 July 2024, Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, para. 106). However, the requirement of temporariness is neither explicitly included in the definition of occupation under Article 42 HR nor is it expressly stipulated in any provision regulating the legal regime of military occupation. Article 6(3) GC IV and Article 3(b) AP I both provide that relevant provisions on occupied territories continue to apply until the end of the occupation, even beyond the conclusion of military operations. These provisions may thus suggest that military occupation, as a legal regime, may endure for as long as the occupying power maintains control.
This raises two fundamental questions: (I) What is the legal basis for the claim that military occupation must be temporary in nature? and (II) What legal or factual elements indicate that such temporariness has ceased? This contribution explores these questions and assesses how the International Court of Justice (ICJ) addressed the issue of temporality in the Advisory Opinion on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
(I) What is the legal basis for the claim that military occupation must be temporary in nature?
Military occupation does not confer sovereignty upon the occupying power. Consequently, such occupation must necessarily be brought to an end. The legal regulation of military occupation by international humanitarian law (IHL) is premised on the understanding that such occupation constitutes a factual situation arising during or after armed conflict, which must be regulated in order to protect the civilian population of the occupied territory and to constrain the administration of the occupying power. The very rationale of this legal framework lies in the principle that military authority over foreign territory does not translate into sovereign authority, and that unilateral annexation is prohibited. Therefore, military occupation is envisaged as a transitory regime, pending the conclusion of a peace settlement capable of resolving the underlying dispute. The temporariness of military occupation is thus embedded within the normative structure of the regime governing it under IHL.
This leads to a fundamental question: can the prolonged occupation of foreign territory still be regarded as a military occupation under IHL and, therefore, regulated by it? An affirmative answer may rest on the contention that military occupation, as a factual situation, endures for as long as the occupying power retains effective control over the territory. The rationale for this continuity would lie in the protective purpose of military occupation law, which imposes obligations on the occupier vis-à-vis the civilian population and limits the authority of the occupier over the occupied territories. However, in some circumstances, the IHL regime considers the military and security needs of the occupying power, and it offers no greater protection to the local population than other applicable branches of international law. In particular, international human rights law (IHRL) – some of whose norms are non-derogable under applicable treaties – and the principle of self-determination, recognized as a jus cogens norm (see 2024 Advisory Opinion cited above, para. 233), offer a broader and more robust framework of protection. Examples include the protection of the rights to life and to liberty, limited by IHL in relation to IHRL, and the right of the concerned people to determine its political status without constraints.
Determining whether a prolonged occupation can be considered military occupation under IHL and regulated by it is, therefore, of central legal significance. In our view, precisely because the IHL regime of military occupation is predicated upon the temporary nature of the phenomenon, a military occupation that has lost its temporary character can no longer be regarded as a ‘military occupation’ within the meaning of IHL. As a result, the legal regime associated with it ceases to apply, and the occupying power can no longer rely on the prerogatives and authority accorded by the HR and GC IV. The protection afforded to the civilian population, the territory, and its resources is then governed – more comprehensively – by other bodies of international law, notably IHRL, the right to self-determination, and the right to humanitarian assistance, none of which permit derogation in the name of military necessity or the security interests of the occupying power. The activities of the ICRC and the Red Cross movement recognized in GC IV can also be performed by applying the general international law rules on humanitarian assistance, embodied in multiple SC and GA resolutions, multilateral treaties (such as the UN Convention on the Rights of the Child), and customary law. In practical terms, this legal position entails that the occupying power can no longer invoke its military needs to justify the restriction of the rights of the civilian population, the administration or exploitation of the territory’s natural resources, the disposition of public lands, the requisitioning of private property, or the enactment of legislation based on military necessity.
(II) What legal or factual elements indicate that such temporariness has ceased?
A crucial element is identifying the point at which a military occupation ceases to be temporary. Indicators of the loss of temporariness include, among others, the modification of the status quo ante, the formal or de facto annexation of all or part of the occupied territory; the occupying power’s refusal to negotiate an end to the occupation; the transfer of the occupier’s civilian population into the occupied territory and the expulsion of the occupied population; the systematic denial of the rights of the protected persons; and continual violation of the right to self-determination of the people of the occupied territory. Persistent violations of IHL obligations demonstrate that the occupying power views itself not as temporarily occupying, but rather as circumventing the prohibition of annexation by indirect means.
As a result of the cessation of the temporary character of the occupation, we consider that IHL ceases to be applied, and other international rules govern the situation. Contrary to a prevailing view in literature (see Tristan Ferraro (ed), Occupation and Other Forms of Administration of Foreign Territory, Expert Meeting Report, ICRC, 2012 at 72), we argue that a correct interpretation of the rules at play supports this proposition.
First, the International Court of Justice (ICJ) has consistently affirmed that IHRL obligations apply extraterritorially to acts carried out by States under their jurisdiction or control, including in occupied territories (see more recently the 2024 Advisory Opinion, cited above, para. 99). Furthermore, the obligation of all States to ‘ensure respect’ for IHL at all times (Article 1 of the 1949 Geneva Conventions) derives not only from treaty law but also from the secondary rules of State responsibility. Article 41 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts stipulates that all States must cooperate to bring to an end serious breaches of peremptory norms of international law, and must neither recognize nor assist such unlawful situations.
Second, fundamental human rights and the right to self-determination possess jus cogens status, while the powers conferred on the occupying power by IHL are contingent in nature. As such, they cannot override peremptory norms. No derogation or justification can excuse a breach of jus cogens obligations. The prerogatives of the occupier cannot be invoked to negate rights protected by IHRL and the right to self-determination – especially in the context of a protracted occupation that is illegal under the principle of self-determination and other principles of international law.
Third, a military occupation that could be prolonged sine die would subvert the very rationale of the relevant legal regime. Rules concerning the competence of former authorities, the role of protecting powers, and military necessity lose relevance in contexts where such authorities no longer exist, protecting powers are defunct, and the situation of belligerency that gave rise to the occupation has ceased – often through the conclusion of peace treaties. Allowing the occupier to continue invoking military occupation powers under such circumstances would run counter to the object and purpose of the legal regime of military occupation under IHL.
Fourth, even if one were to accept the continued validity of the military occupying power’s IHL-based prerogatives, their exercise in the context of a protracted occupation may amount to an abuse of rights, as they serve to entrench the occupation and violate the fundamental principles of international law (see 2024 Advisory Opinion, cited above, para. 261).
Fifth, since a prolonged military occupation is a factual situation, when it is illegal under fundamental principles of international law, such as the principle of self-determination, the applicability of its regime cannot rest under the unilateral decision of the occupier.
III. The ICJ did not push its analysis of the prolonged occupation to its natural outcome
It is worth noting a change in the case law of the ICJ, even though it has not clearly stated the ultimate consequence of the evolution of the application of international law in the matter. In the Nuclear Weapons (para. 25) and the Wall (para. 106) advisory opinions, the Court, although recognizing that IHRL is applicable in situations of armed conflict and military occupation, referred to the lex specialis nature of IHL with respect to IHRL. This in fact implies a limitation in the scope of the enjoyment of human rights in times of armed conflict and occupation. Most recently, in the 2024 Advisory Opinion the Court stated that ‘[t]he fact that an occupation is prolonged does not in itself change its legal status under international humanitarian law. Although premised on the temporary character of the occupation, the law of occupation does not set temporal limits that would, as such, alter the legal status of the occupation. Instead, the legality of the occupying Power’s presence in the occupied territory must be assessed in light of other rules. In particular, occupation consists of the exercise by a State of effective control in foreign territory (see paragraphs 91-92 above). In order to be permissible, therefore, such exercise of effective control must at all times be consistent with the rules concerning the prohibition of the threat or use of force, including the prohibition of territorial acquisition resulting from the threat or use of force, as well as with the right to self-determination. Therefore, the fact that an occupation is prolonged may have a bearing on the justification under international law of the occupying Power’s continued presence in the occupied territory.’ (para. 109) It is precisely that bearing that the Court fell short to identify.
The Court recognized that the fundamental principles of IHL do not exclude the applicability of the right of peoples to self-determination and IHRL, but did not push the consequence to its natural outcome.
The Court declared that international law does not provide a separation point between belligerent occupation and foreign occupation veering into annexation. But does this mean that in the second hypothesis the applicable law remains exclusively the law of belligerent occupation ad aeternum until hell’s water freezes while annexation goes on? That would mean complicity of international law and its tolerance of annexation in violation of one of its major peremptory norms prohibiting conquest by the use of individual military force. In such situations where no direct answer is provided to a major problem, international law usually provides us with certain indices that allow us, through legal reasoning and logic, to reach a solution which is compatible with its major principles, particularly those of peremptory character. Indeed, all legal systems have a rule against perpetuity. The fact that international law, in the absence of a legislature, cannot fix arbitrarily a cut-off date for the application of this rule does not mean that we can reach it through other indirect means. In such situation where there is no direct answer to such a crucial question, international law allows us to reach a solution.
A prolonged military occupation contradicts the very foundations of IHL. Being in essence contrary to ius in bello, it constitutes a further ground to consider it, together with ius contra bellum and the right to self-determination, as illegal and then impermissible. Judge Yusuf, in his Separate Opinion to the 2024 Advisory Opinion, reached the same conclusion following a different path.
Conclusion
The legal framework governing military occupation is grounded in a delicate balance: it recognizes temporary authority to an occupying power while safeguarding the rights and interests of the occupied population. However, this regime loses its legal coherence when occupation becomes prolonged and entrenched. The erosion of the temporariness principle not only undermines the normative foundations of the law of military occupation but risks enabling the very forms of domination and annexation the law was designed to prevent. When occupation ceases to be a provisional factual situation and turns into an open-ended political project, the rules of military occupation no longer apply. At that point, the legal order must shift toward other branches of international law – primarily human rights law and the principle of self-determination – which are better equipped to address and constrain the enduring realities of power and control.
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