What does the law say about the responsibilities of the Occupying Power in the occupied Palestinian territory?

The numerous rules of international humanitarian law (IHL) that seek to protect civilians, most prominently in the Fourth Geneva Convention of 1949 (GCIV), give expression to the fundamental importance of respect for the human person and for the inviolable character of the basic rights of the individual. IHL contains rules specifically developed to apply in occupied territory. One of the main goals of these rules is to address the unique vulnerabilities of civilians in occupied territory.

For the purposes of IHL, occupation is a type of international armed conflict. The laws of occupation are contained primarily in the Hague Regulations of 1907, the Fourth Geneva Convention of 1949 and its Additional Protocol I and also in customary IHL.

The existence of an occupation is determined solely on the basis of the prevailing facts. The term ‘occupation’ has no political connotation whatsoever and is derived exclusively from Article 42 of the Hague Regulations of 1907. Under IHL, three conditions must be met in order to determine the existence of an occupation: the unconsented-to presence of foreign forces; the foreign forces’ ability to exercise authority over the territory concerned in lieu of the local sovereign, and; the related inability of the latter to exert its authority over the territory. 

All together, these elements constitute the ‘effective-control test’ to determine whether a situation qualifies as an occupation for the purposes of IHL. The notion of effective control of foreign territory is at the heart of the notion of occupation: it is effective control that permits foreign troops to enforce duties imposed on them by occupation law.

The ICRC’s longstanding position is that, since 1967, Israel occupies the West Bank, including East Jerusalem, and Gaza, which constitute the occupied Palestinian territory*. In the aftermath of the 1967 international armed conflict between Israel and its neighbouring states, the Israeli armed forces began to exercise their authority over said territory*. 

The disputed status of a territory does not prevent the applicability of the law of occupation. Whether the territory concerned is under the control of a sovereign on the eve of the commencement of an occupation is immaterial, and controversy in respect of Palestine’s statehood has no bearing on this legal determination. Occupation exists as soon as a territory is under the effective control of a State that is not the recognized sovereign of the territory. The occupied population may not be denied the protection afforded to it by the law of occupation because of disputes between belligerents regarding sovereignty over the territory concerned. Thus, as an Occupying Power, Israel is bound by the law of belligerent occupation.

*The official name of the Delegation is "ICRC's Delegation in Israel and the Occupied Territories". The "occupied territories" comprise the West Bank, including East Jerusalem, the Gaza Strip, the Golan Heights and the Shebaa Farms. The ICRC sometimes uses the term "occupied Palestinian territory" to refer to the West Bank, including East Jerusalem, and/or Gaza specifically. This use is based on the standardization of the term, adopted by the United Nations after the recognition of the right to self-determination of the Palestinian people.  

Though the laws of occupation are contained in various IHL instruments and sources, occupation law rules generally share the same reasoning, which is based upon four basic, general principles:

First, the Occupying Power does not acquire sovereign rights to the occupied territory. It therefore may not effect changes in the status and intrinsic characteristics of the occupied territory.

Second, occupation is a temporary situation. In this regard, the Occupying Power must maintain the status quo ante and must not adopt policies or measures that would introduce or result in permanent changes, particularly in the social, economic and demographic sphere. As a result, the rights and duties set forth in occupation law of the Occupying Power are also temporary – they are limited to the duration of the occupation. These rules essentially require the Occupying Power, during the temporary period of the occupation, to maintain as normal a life as possible in the occupied territory and to administrate the territory for the benefit of the local population, while taking into account its own security needs.

Third, the rules of occupation law that govern the exercise of powers by the Occupying Power, always require it to take into account, and balance, two interests: its own military needs and, simultaneously, the needs of the local population. This balance should be reflected by the Occupying Power in the way it administers an occupied territory and more generally in all the actions it takes and the policies it implements in that territory. Importantly, while this balance may sometimes be decided in favour of the security needs of the Occupying Power, the rules of the law of occupation never allow the Occupying Power to completely discount the needs of the local population in the actions it takes.

Fourth, the rules of the law of occupation generally do not allow the Occupying Power to exercise its authority in order to further its own interests (other than its military interests), or with a view to using the inhabitants, the resources, or other assets of the territory it occupies for the benefit of its own territory or population.

These four general principles should be considered in relation to all matters which are occupation law related, and they underpin the main provisions of this body of law.

No. The law of occupation is predicated on the temporary and provisional nature of occupation. The forcible acquisition of territory entails the exercise of sovereignty over occupied territory, thus modifying the status quo ante, which is inconsistent with occupation law. Additionally, annexed territory becomes subject to the legislation of the annexing State, which is contrary to the limited scope of the Occupying Power’s legislative competencies under GCIV. 

As such, unilateral annexations are inconsistent with the letter and spirit of the law of occupation as well as with its underlying principles. Annexation has no effect on the legal status of the occupied territories under international law; nor does it have any bearing on the applicability of the law of belligerent occupation. IHL is clear that protected persons remain protected regardless of any annexation.

Unilateral formal annexations - such as the annexation of East Jerusalem - or de facto annexation of parts of the West Bank have had and will continue to have a serious humanitarian impact on persons protected by IHL.

The ICRC's official position is that the West Bank has been occupied by Israel since 1967. Consequently, the ICRC has repeatedly stated that Israel’s settlements' policy goes against key provisions of IHL, specifically the law of occupation, and is contrary to its letter and spirit. GCIV prohibits an Occupying Power from transferring its own population into the territories under its occupation (See Article 49(6)). Therefore, Israel's settlements’ policy in the West Bank contradicts the GCIV. Settlement expansion – be it through formal expansion of existing settlements or through the largely unchecked spread of unauthorized outposts – is the key source of legal and humanitarian concerns in the West Bank. With its decades-long presence in the occupied Palestinian territory, the ICRC has been a witness to settlements' impact. 

The settlement enterprise* has resulted in additional violations of IHL and humanitarian consequences for the occupied population, including expropriation, damage and destruction of private property; misuse of public property, and; displacement of Palestinians. Settlements restrict Palestinians' freedom of movement and affect the social and economic fabric of communities. They limit Palestinians' access to their agricultural lands, natural resources and medical services. They also contribute to violence between Israeli settlers and Palestinian communities. In accordance with its obligation to restore and to maintain public order and civil life in the occupied territories, Israel has the obligation to protect the Palestinian civilian population against settler’s violence and to punish crimes committed against Palestinians. In addition, the ICRC has repeatedly stated that deliberate attacks against Israeli civilians are in clear violation of IHL. It recognizes Israel’s right to take measures for the security of its population. However, these measures must respect the relevant rules of IHL and IHRL

*Settlement enterprise encompasses all policies, measures, initiatives and actions taken by Israel that have resulted in or contributed to the establishment and expansion of settlements, including outposts and supporting infrastructure; and that have in any way expressly or implicitly facilitated or otherwise resulted in the transfer of Israeli citizens into occupied territory.

In general, the destruction of private property by an Occupying Power is prohibited except under certain circumstances. This includes when it is absolutely necessary for military operations, or when dictated by planning policies, which must be to the benefit of the occupied population.

The ICRC discusses instances of property destruction on a case-by-case and confidential basis. IHL requires that an Occupying Power administers the occupied territory in a manner that allows for the natural growth of its communities. Palestinians should be allowed to build on their own land. The ICRC also does what it can to assist the population under occupation when needed.

The use of force in occupied territory must be assessed, each time, on an individual basis. 

As an occupying power, Israel must ensure public order and safety and may take certain measures to maintain ‘the orderly government’ in the occupied territory. When there is a resort to the use of force as part of law enforcement operations, it is mainly governed by IHRL, which is applicable at all times (in peacetime as well as during armed conflict). Such law enforcement standards entail a gradation of the use of force, and limit the use of firearms and other weapons to principles of legality, necessity, proportionality, precaution and accountability to the most exceptional of circumstances, to avoid loss in human lives and prevent a further escalation of violence. As such, lethal force can only be used as a last resort and only when there is an imminent threat to life.

In occupied territory, armed or security forces are involved not only in law enforcement operations, but also in hostilities. Both situations can happen in parallel. As such, and simultaneously to the application of IHRL, certain operations may be governed by IHL rules on the conduct of hostilities only in those cases where the use of force is directed against lawful targets in a context of armed hostilities; while any use of force against persons protected against direct attack would remain governed by the more restrictive rules on the use of force in law enforcement operations. In case of doubt, a law enforcement approach must be taken, as it remains the use of force paradigm that applies by default in occupied territory.

The ICRC considers Gaza to remain occupied territory on the basis that Israel still exercises effective control over the Strip, notably through key elements of authority over the strip, including over its borders (airspace, sea and land – at the exception of the border with Egypt).

In that regard, IHL requires – as a minimum - Israel to ensure, to the fullest extent of the means available to it, that the basic needs of the population of Gaza are met. Notably, it must ensure that Gaza is supplied with the food, medical supplies and other basic goods needed to allow the population to live under adequate material conditions (Article 55 GCIV).

As an occupying power, Israel is entitled to take measures of control and security (Art. 27 GC IV) towards protected persons. In this regard, while Israel is entitled to impose restrictions on the flow of certain goods into Gaza for legitimate security reasons, its unconditional obligation of humane treatment towards the population of Gaza requires that it respects the principle of proportionality in all circumstances. The nature and extent of the restrictions must be justifiable based on security considerations, and the consequences for the population must be proportionate to the legitimate aim of ensuring Israel's security.

ICRC delegates have been visiting Palestinian detainees in Israeli detention facilities for over 55 years now. Securing humane treatment and conditions for detainees has been at the forefront of our priorities for decades and will remain so. Detainees and their families routinely tell us that our work is essential and makes a positive difference in their lives. The ICRC also works to maintain family links through the Family Visit Program, which enables Palestinians from the West Bank, including East Jerusalem, and the Gaza Strip to visit their family members detained in Israeli prisons.

The ICRC respects detainees' rights to hunger strike and seeks to ensure that the rights of detainees on hunger strike and their dignity and physical integrity as patients are respected, and that the treatment they receive and the conditions in which they are held are humane and meet international standards. It also reminds the authorities of the importance of family visits. ICRC delegates stay in close contact with families throughout a hunger strike to ensure they are kept updated about their loved ones' situation.

The ICRC has been present in Israel and the occupied territories (including the Golan, West Bank and Gaza Strip, and Shebaa Farms) since 1967. As a neutral, impartial and independent humanitarian organization, we promote compliance with international humanitarian law (IHL) and work to mitigate the impact of armed conflict, other violence and occupation on civilians through our protection activities and assistance programmes.  Read our facts and figures from 2023.

Nine months since the onset on October 07 of renewed hostilities between Israel and Hamas, the violence – unprecedented in scale and nature – continues to exact an immense human toll across Israel and the occupied Palestinian territory.

Building on its strong mandate and longstanding presence, and initially drawing on its built-in emergency capacity, the ICRC swiftly adjusted and scaled up its response to address new needs in Israel and Gaza. It also stepped up its response in the West Bank to address the humanitarian consequences of a sharp rise in violence, further exacerbating people’s ability to cope with the impact of longstanding occupation policies and practices.

The ICRC works in close coordination with its partners in the International Red Cross and Red Crescent Movement, in particular the Palestine Red Crescent Society (PRCS) and Magen David Adom (MDA) and continues to work closely with local service-providers, communities and other partners on the ground.

The ICRC works to prevent, mitigate, and address the humanitarian consequences of the ongoing armed conflict through its different services. Between 7 October 2023 and 30 June 2024 the ICRC has:

• Monitored respect for IHL throughout Israel and the occupied territories, raising concerns with the parties to the conflict and providing concrete recommendations to prevent IHL violations and minimize human suffering, as part of our continuous bilateral and confidential dialogue.
• Facilitated the release, transfer and return of 109 hostages from Gaza to their families.
• Facilitated the release, transfer and return of 154 Palestinian detainees from Israeli places of detention to their families.
• Assisted 5,000 people in Hebron to have access to enhanced wastewater and drainage systems by providing technical and material support to Hebron Municipality in the West Bank.
• Supported the Palestinian Water Authority in the West Bank to enable 6,000 people in Qariout village and 13,000 people in Burin village to have improved access to water.