07 Mar The (il)Legality of Israel’s Prolonged Occupation of the Palestinian Territory: Perspectives From the UN Special Rapporteur and Commission of Inquiry’s September 2022 Reports
[Vito Todeschini is a legal expert focusing on human rights and accountability in the context of Palestine/Israel and the wider MENA region.]
In September 2022, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (COI), and the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (SR), Francesca Albanese, published their reports (here and here) ahead of the 77th session of the UN General Assembly, where they were later presented.
Both reports focused on an often-overlooked question surrounding Israel’s prolonged occupation of the Palestinian territory: its legality. The COI mainly relied in its assessment on international humanitarian law (IHL) and the prohibition on territorial acquisition by force, while the SR based her analysis on the law of self-determination, especially against the background of colonialism and anti-colonial struggles. Despite their different approaches, both reached the same conclusion: Israel’s prolonged occupation of the Palestinian territory, namely the West Bank, including East Jerusalem, and the Gaza Strip, is unlawful and must come to an immediate end.
Pursuant to one of the COI’s recommendations, on 30 December 2022 the UN General Assembly requested an advisory opinion from the International Court of Justice (ICJ) on the following questions (para. 18):
(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?
The ICJ has thus been invested with the question of the legality of Israel’s occupation of the Palestinian territory (for analysis of the advisory opinion’s scope and possible legal effects, see Diakonia, Susan Power, Ata R. Hindi, and Giulia Pinzauti).
This post will look into the COI and SR’s arguments more in detail, as indispensable elements for the ICJ’s future analysis. It will also add some observations on the utility of employing jus ad bellum (the law on the use of force) as a further legal regime to assess the legality of Israel’s prolonged occupation of the Palestinian territory.
A Perpetual Occupation
It is well established that the Palestinian territory, comprising the West Bank, including East Jerusalem, and the Gaza Strip, is under Israel’s belligerent occupation, to which both IHL, and particularly the law of occupation, and international human rights law apply. Under IHL, belligerent occupation is meant to be temporary; yet, such legal regime does not set an end date to occupations, rather being concerned with placing restraints on the Occupying Power’s use of the occupied territory and with protecting the civilian population. While there is no formal prohibition under IHL for a belligerent occupation to be prolonged, an essential tenet is that an Occupying Power may not implement measures – de jure or de facto – that make the occupation permanent.
In a 2017 report, the former SR, Michael Lynk, described such measures as a “red line” that, once crossed, would make an occupation unlawful. In his view, by perpetuating the occupation and implementing changes to the occupied territory, including the establishment of settlements, land expropriation and the exploitation of natural resources, as well as the purported de jure annexation of East Jerusalem, Israel has crossed such a line (para. 65). In its September 2022 report, the COI reached a similar conclusion:
The Commission finds that there are reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law owing to its permanence and to actions undertaken by Israel to annex parts of the land de facto and de jure. … Israel treats the occupation as a permanent fixture and has – for all intents and purposes – annexed parts of the West Bank, while seeking to hide behind a fiction of temporariness.paras. 75–76
Like the former SR, the COI based its conclusion on:
(i) the legal measures by which Israel has purported to formally annex East Jerusalem (paras. 14–16);
(ii) the establishment of settlements and outposts in the West Bank, and the associated exploitation of natural resources, building of settler-only roads and infrastructures, demographic engineering measures, and extraterritorial application of Israeli domestic law to settlements and settlers (paras. 24–47); and
(iii) the unequivocal statements by Israeli officials of the intent to appropriate permanently portions of the West Bank (paras. 48–53).
The importance of the COI’s report is that it considered Israel’s violation of binding rules of international law not in isolation, but in the context of the system that generates them, namely, a self-perpetuating occupation. By so doing, the COI evaluated such a system and reached the inevitable conclusion that, because of its perpetual and annexationist character, Israel’s prolonged occupation of the Palestinian territory is itself unlawful and, therefore, must immediately be terminated.
Notably, from the report’s examination it appears that the COI considered illegality as a consequence of Israel’s unlawful behaviour in the context of an otherwise lawful occupation. In another words, had Israel respected the law of occupation, international human rights law and the prohibition of territorial acquisition by force, then the occupation would not have been unlawful. However, by resorting to an additional legal regime to analyze the situation – jus ad bellum – it would be possible to evaluate the occupation’s legality since its outset. In fact, jus ad bellum allows to assess whether the actual use of force that culminated in the occupation of the Palestinian territory during the 1967 war, and in its maintenance ever since, was itself lawful.
While a full examination of the matter falls outside the scope of this contribution (for further analysis, see Ralph Wilde’s article, policy brief and legal opinion, and my contribution in a forthcoming book), it suffices to observe that, as a matter of jus ad bellum, Israel purports to justify the occupation of the Palestinian territory on the basis of self-defence. As well known, under the law of self-defence a State may use armed force to repel an armed attack, provided such use of force respects the principles of necessity and proportionality. This encompasses cases in which an armed attack is imminent, i.e., about to occur (see further discussion on the concept of “imminence”). From a jus ad bellum perspective, the ICJ’s assessment of the legality of Israel’s occupation of the Palestinian territory would require to examine whether the conditions of a lawful exercise of self-defence existed (i) in the moment the occupation was established during the 1967 war and (ii) subsequently throughout its continuation and until today.
First, the ICJ would have to consider whether, in the context of the 1967 war, Israel’s initial occupation of the Palestinian territory was a necessary and proportionate measure to repel an ongoing or imminent armed attack by Egypt, Jordan and Syria (the other parties to the conflict). While that is precisely Israel’s claim, some scholars have contested such an account.
Second, provided the initial occupation were deemed lawful under the law of self-defence, the ICJ would have to look into whether, following Israel’s military victory in the 1967 war, the maintenance of the occupation met the required conditions under the same legal regime. As extensively discussed by Wilde in his article and legal opinion, Israel’s continued occupation of the Palestinian territory cannot be said to meet the test of lawfulness under the law of self-defence, particularly because no tenable claim can be made that such an occupation is necessary to repel an actual or imminent armed attack. Christine Gray also noted that, according to State practice, prolonged occupations are deemed unnecessary and disproportionate in terms of the law of self-defence.
Employing jus ad bellum to investigate the use of force underlying the establishment and maintenance of Israel’s prolonged occupation of the Palestinian territory is thus valuable to assess its legality. This would indeed provide the ICJ with an opportunity to consider (i) whether the occupation was lawfully established under the law of self-defence, and then became unlawful once the 1967 war was over, or (ii) whether it has always been unlawful since its inception.
Israel’s Occupation as a Settler-colonial Enterprise
Similarly to the COI, the SR found Israel’s occupation of the Palestinian territory to be unlawful, yet on the basis of a different legal regime, i.e., the law of self-determination. The Palestinian people’s right to self-determination has long been recognized by, inter alia, the UN General Assembly (e.g., Resolution 3236 (XXIX) (1974)), the International Court of Justice (Wall advisory opinion, paras. 118 and 149) and the UN Human Rights Council (e.g., Resolution 49/28). While self-determination is connected to the establishment of an independent State on the Palestinian territory, this right accrues to the Palestinian people as a whole, which encompasses not only Palestinians living in the West Bank, including East Jerusalem, and the Gaza Strip, but also Palestinian citizens of Israel and Palestinian refugees living in third countries. It is also generally acknowledged that Israel’s prolonged occupation of the Palestinian territory is incompatible with the realization of such a right, given that it impedes the enjoyment of the civil, political, economic, social and cultural rights of Palestinians.
The particular relevance of the SR’s analysis is that, instead of simply reiterating this right and merely analyzing the legal consequences flowing from its violation, she placed the question of Palestinian self-determination back where it belongs – the struggle against colonialism – thereby looking at the root causes of the denial of the right to self-determination of the Palestinian people (for previous articulations of this argument, including on self-determination being part of international human rights law, see Wilde here and here). In so doing, the SR acknowledged a point that Palestinians have been making for decades (e.g., Sayegh), namely that Israel’s occupation of the Palestinian territory is colonial in nature and constitutes, specifically, an expression of so-called settler-colonialism (see Muhareb & Clancy; Al Haq):
Colonialism is characterized as “settler” when also driven by the logic of elimination of the indigenous character of the colonized land. This manifests in the establishment and promotion of colonies, namely, settlements of foreign people implanted among the indigenous population with the aim of subjugating and dispossessing the natives and “permanently securing hold” over specific areas. The violation of the peoples’ right to self-determination is inherent to settler-colonialism.SR report, para. 13
In this sense, the settlement enterprise in the West Bank, including East Jerusalem, is to be understood not just as a violation of Israel’s obligations under international human rights law, or as a grave breach of article 49(6) of the Fourth Geneva Convention, which prohibits the Occupying Power to transfer its own population into the occupied territory, and which constitutes a war crime under the Rome Statute. Instead, the settlement enterprise, which Israel declared to be a “national value” under the 2018 Jewish Nation-State Basic Law, should be interpreted as a settler-colonial endeavour, which “prevent[s] the realization of the Palestinians’ right to self-determination” and willfully pursues “the ‘de-Palestinianization’ of the occupied territory” (ibid. paras 35–36; Erakat; Wilde). In light of this, the SR has called for a “paradigm shift” in the assessment of Israel’s occupation of the Palestinian territory, by acknowledging its essence as “an intentionally acquisitive, segregationist and repressive regime.” Her conclusion is that Israel’s occupation, as such, “entails an unlawful use of force and therefore can be seen as an act of aggression”, which requires its immediate termination and the provision of reparations (SR report, para. 72; on this point, see also previous analysis by Wilde).
The SR’s findings and conclusions are remarkable in a number of respects. First, the SR’s analysis looks at the occupation of the Palestinian territory as a system of oppression, in respect of which Israel’s manyfold violations of international law constitute the way the settler-colonial enterprise takes shape and negatively impacts the lives of Palestinians (see Wilde; Asaad & Muhareb). Similar analytical efforts have in the last few years been undertaken by using apartheid as a framework of reference. In this respect, the SR noted that apartheid can be useful to address Israel’s occupation of the Palestinian territory only if it also engages with the question of the illegality of both the occupation itself and the underlying settler-colonialism that produces the apartheid practices (paras. 9–11). In fact, as many Palestinian scholars and civil society activists have pointed out, apartheid is but a manifestation of settler-colonialism (e.g., Tatour; Erakat; Asaad & Muhareb; Al Haq).
Second, and in connection to the point above, the SR’s report is crucial in that, following Wilde, it frames the exercise of the right to self-determination of the Palestinian people, and correspondingly the assessment of the legality of Israel’s prolonged occupation of the Palestinian territory, within the context of colonialism and anti-colonial struggles: “[n]o solution can be just and fair, nor effective, unless it centres on decolonization” (SR report, para. 74). This way, the Palestinian self-determination is correctly historicized and contextualized within the struggle against colonialism. Not only: the SR also reconnects Israel’s prolonged occupation and settlement enterprise to the history of modern Palestine, by affirming that “the intent to colonize the occupied Palestinian territory” since 1967 is a continuation of “what the Zionist movement had envisaged for modern-day Israel over a century ago” (ibid., paras 35–36).
Third, using the right to self-determination as the framework to analyze Israel’s prolonged occupation of the Palestinian territory is a way to put the Palestinian people at the forefront, and acknowledge their agency in the liberation process (see Wilde; Asaad & Muhareb). Instead of feeding into the discourse that sees Israel as the agent (the violator of rights) and Palestinians as the object (the victims of violations), the SR’s report brings the rights-holder back to the centre of the stage. Such an attempt is further reinforced by the SR’s use of the settler-colonialism framework to interpret Israel’s prolonged occupation of the Palestinian territory, an approach that Palestinian scholars and civil society have long devised and advocated for. This helps make the Palestinian narrative emerge within the mainstream discourse on the question of Palestine, including at the UN, where such a narrative is often sidelined or silenced.
The importance of the COI and SR’s findings cannot be overstated and will certainly be precious to the ICJ’s deliberation on the question of the legality of Israel’s prolonged occupation of the Palestinian territory. The additional merit of the SR’s report is to go even further by determining the unlawfulness of the very driving force behind the occupation’s establishment and maintenance, i.e., settler-colonialism and its attempt to erase the Palestinian people (see Erakat; Wilde; Asaad & Muhareb). This is a legal point that should definitely be considered by the ICJ in its advisory opinion. In fact, similarly to an analysis that takes jus ad bellum into account, considering the law of self-determination and the prohibition on colonialism allows to assess the legality of Israel’s prolonged occupation of the Palestinian territory since its inception, and not only based on the passing of time or the adoption of unlawful measures subsequent to its establishment.
On a final note, given the SR’s mandate is circumscribed to the occupied Palestinian territory, her examination cannot formally cover Israel proper or the temporal period preceding 1967. The COI’s mandate, on the other hand, has no such limit. Hopefully, the COI will take up the SR’s recommendation to “investigate the status of the right to self-determination and Israeli settler-colonial endeavours in more depth than the territorial and geographic limitations of her mandate allow.”
This post was updated on 10 March 2023 to include further references.