The United Nations General Assembly Request to the International Court of Justice for an Advisory Opinion: (Some) Reflections

[Ata R. Hindi is Research Fellow in International Law, Institute of Law at Birzeit University.]

In 2004, the International Court of Justice (ICJ) issued its advisory opinion on the Wall and its associated regime. Nearly two decades later, Palestine is back at the ICJ, where the Court will have to address another paramount issue: the (il)legality of Israel’s occupation altogether as well as the implications for third states.

The latest audience before the ICJ stems from the United Nations (UN) General Assembly (UNGA) Resolution 77/400, requesting an advisory opinion on the following questions:

(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? 

(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?

In brief, the UNGA has tasked the ICJ with assessing the (il)legality of Israel’s occupation of the oPt/State of Palestine, rather than a piecemeal analysis of Israel’s violations. The question follows from two recent UN-mandated reports which concluded that Israel’s occupation of the oPt/State of Palestine is unlawful: by the current Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Francesca Albanese; and by the recently established Independent International Commission of Inquiry on the Occupied Palestinian Territory, Including East Jerusalem, and Israel. Both reports build upon the analysis of Albanese’s predecessor, Michael Lynk (also drawing from his predecessors). They employ similar, although not identical, assessments to make their determination. 

For years, Palestinian and international civil society have pushed for this action. Perhaps naively, Palestinians (including myself) have looked to international law as a (possibly) emancipatory tool. In terms of third state responsibility, the Wall advisory opinion only scratched the surface and we hope the ICJ will go further. At least in theory, qualifying the occupation as unlawful would entail increased obligations on third states to end the occupation. Western/Global North states are always hesitant towards any authoritative determination on increased obligations, especially towards Israel. And, as expected, the double standards were on full display before the UNGA, with the usual suspects voting against or abstaining from the resolution. 

The United Nations-Mandated Reports’ Assessments

There are several ways to tackle the question, including under jus ad bellum and jus in bello, and for various international law violations (see Wilde and Power). The ICJ may resort to assessing the occupation’s (il)legality by drawing from the above-mentioned reports, and there is a lot to unpack. 

The assessments from Lynk, Albanese, and the UN commission are similar, but not entirely in sync, listing several parts of a test to determine (i)llegality. These parts are considered fundamental tenets of international law applicable to situations of occupation. In their respective orders,

• Lynk: non-annexation; temporariness; best interests; and good faith. 
• Albanese: temporariness; best interests; annexation; breaching most OP obligations. 
• UN commission: non-sovereignty/title; public order/civil life; trust/self-determination; and temporariness. 

The tests are international humanitarian law (IHL)-based, but they also include non-IHL rules, such as those pertaining to annexation, self-determination, and others. I note that the commission only summarizes its understanding of the test drawn up by Lynk and others, but shifts its focus to two indicators: permanence and annexation. 

When treated separately, acting contrary to these fundamental tenets would amount to (mostly) singular violations. When grouped together, they are seen as creating an unlawful situation (although for Lynk, the violation of one would seem to suffice). The assessments are overly drawn-out and wanting in further consistency, with each employing various parts as determinative criteria. The ICJ may feel the need to entertain their nuances. However, the criteria would better serve as non-exhaustive, non-cumulative factors. 

Of the three, the commission’s shifting approach stands out, using the indicators to zero in on the occupation-to-annexation paradigm. Yet, they could have simplified the analysis: a) whether there is an occupation; and b) whether the OP has taken measures to annex the territory vis-à-vis the occupation. Combined, these would have evaluated the occupation-to-annexation threshold and, if so, qualify the situation as unlawful by way of the occupation’s serious breach of at least that peremptory norm. 

It’s worth mentioning that, like “forms” of occupation, international law provides no clear differentiation between “forms” of annexation. Annexation is a matter of fact, whether achieved through law or practice. A focus on the differentiation between de jure and de facto has taken on a life of its own and dominated the discourse, including within civil society, particularly since the language of the Wall advisory opinion. Differentiation between sorts of annexation should be considered redundant. In many ways, it would seem that findings of de facto annexation are not findings of annexation in its purest sense and, ultimately, semantic nonsense (see James Crawford, Brownlie’s Principles of Public International Law (9^th ed., 2019), at 212).

Assessing the Occupation’s (Il)legality Based on Serious Breaches of Peremptory Norms

Ideally, the ICJ will prioritize assessing the (il)legality of the occupation in relation to its serious breaches of peremptory norms. So far, all three assessments forego this aspect, especially the prohibition on annexation despite its prominence. As explained below, the ICJ should take this approach even if at the expense of the above assessments. Whether a situation of occupation is (un)lawful should be determined by the situation the OP creates in line with its peremptory norm obligations, first and foremost.

This argument is neither new, nor novel. Civil society has insisted on this question for years, and it is well-trodden in scholarly discourse (see, e.g., Imseis, Dugard (here, here, and here), Pachecho, and Falk). If serious breaches of peremptory norms are attributable to a state vis-à-vis its occupation, wouldn’t the rules on state responsibility demand an end to the occupation? By qualifying a situation of occupation as unlawful, state responsibility entails increased obligations towards reversing the situation. The serious breaches only end by ending the occupation (i.e. the serious breaches wouldn’t occur sans the occupation). Would Israel be able to commit serious breaches of peremptory norms – annexation, denial of the right to self-determination, racial discrimination, and apartheid, amongst others, sans the occupation of Palestine? The simple answer is no. 

While the assessments employed thus far are valuable, the more pertinent assessment should be based on the serious breaches of peremptory norms including the denial of the right of peoples to self-determination, racial discrimination, and apartheid, among others (e.g., aggression (see Wilde)). The ICJ may have exercised some restraint in identifying peremptory norms, but it has been open to discussing erga omnes obligations. The ICJ can draw from the determinations made by UN treaty-bodies (including the Human Rights Committee, Committee on the Elimination of Racial Discrimination (CERD), and others) and its organs, even though they may not refer to those violations specifically as peremptory norms.  Like the International Law Commission’s commentaries on the rules on state responsibility, ICJ should also be clear in its use of the language – as such, to explain that serious breaches of peremptory norms equate to erga omnes obligations for the purposes of state responsibility. This is the kind of authoritative determination that the situation demands.

The Prolonged Occupation Notion

TWhile it can certainly be argued that occupations can be unlawfully prolonged, prolonged occupations should not be seen as distinct legal categories. Theoretically, occupations that either are or will be prolonged naturally involve annexation, in some form or another. The prolonged occupation notion has led to problematic and entirely needless discussions, particularly with respect to the limits and bounds of OP duties and obligations. Finding that the occupation is prolonged does not shift or negate an OP’s duties and obligations. 

In some of the discourse, determinations on (il)legality and OP duties and obligations are linked, yet occupation law does not operate on a spectrum and OPs should not be given leeway by entertaining alternative governance models, while pursuing annexation. An occupation does not have to be prolonged for it to become unlawful (the case in Ukraine on point, and for serious breaches of peremptory norms). An occupation’s prolonged nature may be a factor in determining (il)legality, but is not a determinative one.

Ending the Occupation

Israel’s occupation of the oPt has lasted for over 55 years; the longest military occupation in modern history. The occupation should have ended long ago, with Israel’s complete military and civilian withdrawal from the entirety of the oPt/State of Palestine.

While the IHL’s conventional and customary rules are numerous and detailed, nothing in IHL prescribes an obligation to end an occupation (see, e.g., the discussion in the ICRC’s expert meeting here). Rather, it is commonsensical and implied through other conventional and customary IHL rules. Yet, this obligation exists most clearly where an occupation gives rise to serious breaches of peremptory norms. 

In light of Israel’s serious breaches of peremptory norms vis-à-vis the occupation, the occupation itself has become an unlawful situation. This has legal consequences for Israel, as the OP, as well as third states.  The unlawful situation can only be reversed by ending the occupation in line with the rules on state responsibility. Under those rules, third states are obligated not to recognize, nor provide aid or assistance in the maintenance of the unlawful situation created by the occupation. They must also cooperate to bring it to an end through lawful means. They can no longer object, abstain, or look the other way.