End of Occupation

This term is understood under international law as the termination of the exercise by one power of control over territory not within the recognized sovereignty of that power.

Definition

The term "End of Occupation" is generally understood under international law as the termination of the exercise by one power of control over territory not within the recognized sovereignty of that power (See also: Occupation).

Sources of Definition

The principal international law source specifically addressing End of Occupation is Article 6 of the Fourth Geneva Convention, which provides: “In the case of occupied territory, the application of the present Convention shall cease one year after the close of military operations; however, the Occupying Power shall be bound, during the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, [by various provisions of the Convention].”

In short, under the Fourth Geneva Convention, an occupying power's responsibility ends at the latter of:

  1. one year after the close of military operations, or
  2. when the occupying power ceases to "exercise the functions of government in" the territory.

However, consistent with the broader definition of Occupation described by commentators, “end of occupation” likely would be understood as occurring when the occupying power ceases to exercise control – not just “the functions of government” – over the territory.

Application to the Disengagement Plan:

There is international consensus that Israel occupies Gaza and the West Bank.

The question therefore arises whether Israel's disengagement from Gaza under the Disengagement Plan would be treated as an “end of occupation” under international law. The Disengagement Plan provides that "as a result [of the disengagement], there will be no basis for claiming that the Gaza Strip is occupied territory."2

However, Israel's characterization will not control the analysis. The question is whether Israel's actions in fact meet the requirements of End of Occupation under international law. In light of the broad scope of the concept of occupation as generally conceived today, End of Occupation will likely be treated as occurring when Israel ceases to exercise control over Gaza. Whether Israel ceases to exercise control over Gaza will depend, in turn, on the specifics of the disengagement.3

For example, if Israel withdraws its forces, leaves a vacuum, patrols the airspace of Gaza, and prevents a free flow of goods and people into and out of Gaza,
4 the international community (or an international tribunal) may well conclude that Israel still exercises such a degree of control over Gaza that Israel has not ended occupation.

The fewer restrictions Israel places on Gaza following disengagement, the more likely Israel will be viewed as having ended occupation. However, even if a disengagement from Gaza is treated as an end of occupation, Israel might face further challenges under international law. Specifically, if Israel effectively seals the borders of Gaza, it might be treated as engaging in a barricade, besiegement, embargo or quarantine, and subject to possible condemnation under other provisions of international law.5



1 See, e.g., Human Rights Watch, The War in Iraq and International Humanitarian Law — Frequently Asked Questions (May 16, 2003 update) (“Question: When does occupation end? Belligerent occupation ends when control by the occupying power is no longer exercised. This usually occurs when there is a political settlement of the armed conflict, and the occupying power withdraws and an existing or new government assumes authority.”) (see here - site visited on September 21, 2004); electronicIraq.net Article (occupation ends when “[t]he international armed conflict has ended” or “[f]oreign military forces have withdrawn from enemy territory or are no longer exerting control over the population of that territory”; “In case of an on-going conflict, the withdrawal of the forces also brings an end of the applicability of the law of occupation. It implies however that the enemy power has regained control over its population and territory. The mere withdrawal of troops from conquered places does not end or suspend the application of [international humanitarian law] rules if it leaves a vacuum of authority.”).
2 See discussion in concept Occupation.
3 "Disengagement Plan", 2(i)(3) (original plan dated April 18, 2004).
4 See Disengagement Plan, Addendum A, 3(1) (June 6, 2004) ("The State of Israel will guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in Gaza air space, and will continue to exercise security activity in the sea off the coast of the Gaza Strip").
5 See, e.g., PLO Negotiations Support Unit, “The Israeli ‘Disengagement’ Plan: Gaza Still Occupied” (Oct. 2004) (reproduced at here; site visited October 10, 2004)) (“Notwithstanding the terms of the [Disengagement] Plan, Israel will remain an occupying power under international law after disengagement from Gaza and is therefore bound by the obligations of an Occupying Power under international customary law and the Fourth Geneva Convention”).