Arbeitsgemeinschaft für Entwicklung und Humanitäre Hilfe
Outside view (EN)
Military occupation is not a relic of the past. From Gaza and the West Bank to eastern Ukraine, today’s conflicts raise urgent questions about humanitarian aid obligations under international law. What must Occupying Powers do to protect civilians and enable relief efforts in the territories they control?
Outside view by Kubo Mačák
Legally speaking, “occupation” (also referred to as belligerent or military occupation) is a type of international armed conflict. It comes to existence when a territory falls under the effective control of foreign armed forces. From that point, the territory is considered “occupied”, and the foreign State becomes the “Occupying Power”.
International law contains a rich tapestry of rules safeguarding the rights and welfare of civilians living under occupation. Many of these rules appear in the 1949 Fourth Geneva Convention (GCIV), its 1977 Additional Protocol I (API), and customary international humanitarian law (IHL). International human rights law – reflected in treaties including the 1966 International Covenant on Civil and Political Rights – also continues to apply, as recently affirmed by the International Court of Justice (ICJ) in its advisory opinion on Palestine.
Serious violations of these obligations may amount to international crimes, including war crimes, crimes against humanity, or even genocide. Individuals responsible for such acts can be held criminally responsible before domestic courts or international tribunals such as the International Criminal Court. However, as treaty commitments vary among States, precise obligations can differ. What follows is a general overview, not an attribution of responsibility to any specific States or actors.
A central starting point is the prohibition on using starvation of civilians as a method of warfare. Starvation, in this sense, means deliberately depriving people of food, water, or other necessities for survival. As the International Committee of the Red Cross (ICRC) explained in its influential 2024 Challenges Report, the “deprivation need not be so severe as to cause death; it is enough that it would cause suffering”.
For example, blocking the entry of food and water into an occupied territory, or destroying the means to produce and distribute them may violate the prohibition. If members of the occupying forces intentionally deprive civilians of items indispensable to their survival, they may be held individually responsible for a war crime under Article 8(2)(b)(xxv) of the Rome Statute. In addition, acts undertaken without the purpose of causing starvation, but which induce food insecurity may violate other rules of IHL.
The primary obligation to ensure that the needs of the occupied population are met rests with the Occupying Power. This allocation of responsibility reflects the practical realities of occupation. In many cases, the onset of occupation results in the collapse or dismantling of local governance structures. As the entity that actually controls the territory and its population, the Occupying Power is in the best position to assess and respond to humanitarian needs.
These practical considerations are also reflected in international law. Under customary IHL – as reaffirmed by the ICJ in the advisory opinion mentioned earlier – the Occupying Power “shall be regarded only as administrator and usufructuary of natural resources in the occupied territory, including but not limited to forests and agricultural estates” (para. 124). This means that it must preserve, as far as possible, the capacity of the occupied territory to provide for its own needs.
But the law goes further. Beyond merely safeguarding local production, the Occupying Power also has express duties to see to it that the basic needs of the population are met. Article 55 GCIV requires it to ensure the provision of food and medical supplies to the population, while Article 69 API extends that list to other vital supplies such as clothing, bedding, and shelter. Both provisions are subject to the qualifier “to the fullest extent of the means available to it”, recognizing that the Occupying Power may face logistical or financial difficulties. Still, it must use all means at its disposal to fulfil these obligations.
International law does not prescribe a specific model for delivering essential supplies. The Occupying Power may do so through its armed forces, civilian authorities, or through newly established structures. But whatever the arrangement, it remains legally responsible for ensuring that the population’s needs are met. In particular, it cannot evade responsibility by outsourcing distribution to private actors. If such an actor provides assistance in a discriminatory, selective, or otherwise insufficient manner, the Occupying Power remains responsible for failing to meet its obligations.
In practice, humanitarian needs of the occupied population may remain unfulfilled. This can stem from the Occupying Power’s unwillingness, but also from external factors such as enemy blockades, supply chain disruptions, or natural disasters. In such cases, international law explicitly requires the Occupying Power to allow and facilitate humanitarian assistance by external actors (Article 59 GCIV). It is worth noting that IHL does not demand for an acute food crisis to materialize before offers of humanitarian aid can be made and accepted (see Ferraro, pp. 195–196).
However, if the occupied territory is, in the words of Article 59, “inadequately supplied”, the Occupying Power’s obligation to accept offers of humanitarian services is unconditional. While it may prescribe technical restrictions to verify and supervise aid delivery – for example, by inspecting consignments or setting delivery routes – it must not arbitrarily refuse, delay, or obstruct relief from third States or impartial humanitarian organizations like the ICRC. Doing so may even constitute the war crime of “wilfully impeding relief supplies” under Article 8(2)(b)(xxv) of the Rome Statute.
A particularly challenging situation arises if the Occupying Power imposes conditions that exceed permissible technical restrictions. For instance, what if it insists that humanitarian actors hand over aid for exclusive distribution by the military? While each case must be assessed on its own merits, international law does not oblige humanitarian organizations to comply with measures that would compromise the humanitarian and impartial character of their operations. In extreme circumstances, humanitarians may even have to withhold cooperation to avoid contributing to unlawful – and potentially criminal – conduct of the Occupying Power.
Although civilians in occupied territories often face precarious and vulnerable conditions, they are not without protection under international law. On the contrary, IHL establishes a robust protection regime, comprising an interlocking web of obligations binding on Occupying Powers and designed to safeguard occupied populations from food insecurity and other conflict-related risks. It is essential that these rules are strictly observed and effectively implemented at all times.
Dr Kubo Mačák is Professor of International Law at the University of Exeter, United Kingdom. Kubo is the author of the book Internationalized Armed Conflicts in International Law (Oxford University Press 2018) and of multiple articles in peer-reviewed journals including the International & Comparative Law Quarterly, International Review of the Red Cross, and the Journal of Conflict and Security Law. Kubo is also the General Editor of the Cyber Law Toolkit, an award-winning interactive online resource on the international law of cyber operations. Between 2019 and 2023, he served as a legal adviser at the International Committee of the Red Cross in Geneva.
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