Ghost Occupation: How Remote Warfare Challenges the Traditional Doctrine of Occupation in International Humanitarian Law

The occupying state traditionally bases its occupation established under International Humanitarian Law (IHL) as embodied in Hague Regulations (1907) and Geneva Convention IV (1949) on the basic premise that real control over a territory must be achieved through a physical military occupation and direct control by the occupying authority. Nonetheless, the fast rate of change in the technologies of warfare (unmanned combat systems, i.e., drones, artificial intelligence-based surveillance, cyber operations, and proxy networks) has contributed to the creation of a different paradigm, the so-called Ghost Occupation. The phenomenon involves the cases of states implementing and sustaining occupation-like authority, and referring to territories and peoples, without having deployed the armed forces that usually create the requirements of the occupying powers in light of the Belligerent Occupation of IHL. This paper is a critical analysis of the systematic undercutting by remote warfare technology of the occupation doctrine on IHL by weakening the relationship between presence and effective control. By looking into modern conflict situations, namely operations by drones in Somalia by the U.S., control measures in the West Bank of Israel, which are augmented by computer-assisted technology, and tactics used by Russia to ensure a hybrid war in Ukraine, we reveal how the states can find legal gray areas to establish de facto domination without the final status of an occupation. The resultant problem of accountability places civilian populations in an uncertain legal trap without the safeguards of the occupation regime as stipulated in IHL. It is also possible to argue in the article that the present state of IHL occupation might become outdated unless it can adapt to the modern-day reality of digital superiority, where algorithms rule and constant remote military action takes place. The occupying state traditionally bases its occupation established under International Humanitarian Law (IHL) as embodied in Hague Regulations (1907) and Geneva Convention IV (1949) on the basic premise that real control over a territory must be achieved through a physical military occupation and direct control by the occupying authority. Nonetheless, the fast rate of change in the technologies of warfare (unmanned combat systems, i.e., drones, artificial intelligence-based surveillance, cyber operations, and proxy networks) has contributed to the creation of a different paradigm, the so-called Ghost Occupation. The phenomenon involves the cases of states implementing and sustaining occupation-like authority and referring to territories and peoples, without having deployed the armed forces that usually create the requirements of the occupying powers in light of the Belligerent Occupation of IHL. This paper is a critical analysis of the systematic undercutting by remote warfare technology of the occupation doctrine on IHL by weakening the relationship between presence and effective control. By looking into modern conflict situations, namely operations by drones in Somalia by the U.S., control measures in the West Bank of Israel, which are augmented by computer-assisted technology, and tactics used by Russia to ensure a hybrid war in Ukraine, we reveal how the states can find legal gray areas to establish de facto domination without the final status of an occupation. The resultant problem of accountability places civilian populations in an uncertain legal trap without the safeguards of the occupation regime as stipulated in IHL. It is also possible to argue in the article that the present state of IHL occupation might become outdated unless it can adapt to the modern-day reality of digital superiority, where algorithms rule and constant remote military action takes place.