Why and How States, and the EU, Need to Face Up to the Illegality of Israel’s Presence in the Palestinian Gaza Strip and West Bank, Including East Jerusalem, and the Legal Obligations they Bear to Suppress this Illegality

[Ralph Wilde is Professor of International Law at UCL, University of London.  He acted as Senior Counsel and Advocate to the League of Arab States in the case discussed in the post, and is writing in his personal capacity only.]

Introduction

Six months ago, on 19 July 2024, the International Court of Justice issued one of the most, if not the most, significant judicial decisions ever rendered in international law. The landmark Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem Advisory Opinion (OPT Advisory Opinion). Its main determinations were endorsed, and supplemented, by the UN General Assembly in its resolution of 13 September 2024. The ICJ and GA affirmed a profound shift of focus, compared to certain existing approaches, notably by most western States and the EU, on the question of the occupation’s legality: the Israeli presence is illegal in not only its conduct, but also its very existence, as a violation of the legal right of self-determination of the Palestinian people, and the prohibition of annexation through the use of force in the law on the use of force.

Because of the fundamental character of the rules, their violation gives rise to special suppression-related obligations on the part of all states. However, despite these legal matters having been determined at the most fundamentally authoritative level, many states, and the EU, are still behaving according to an approach that has been effectively ruled to be legally inadequate. In what follows, I explain, by way of reminder, what these actors need to face up to in their relations with Israel, as a consequence of the legal position they are in because of Israel’s violations of international law. This explanation is a summary of an expert legal opinion I was commissioned to write for Al Haq Europe on the subject, published on 1 December 2024.

(I should declare that, in addition to the aforementioned work for Al Haq Europe, I served as Senior Counsel and Advocate to the League of Arab States in the Advisory Opinion proceedings. The submissions (see here, here, and here) made in this capacity were based on ideas in my academic writing (see here, here, here, here, here, and here). These academic ideas were adopted by many of the other participants in the proceedings, and, ultimately, formed the basis for the determination of existential illegality made by the Court and the General Assembly).

Illegality of Israel’s presence in the OPT

Israel’s presence in the OPT is, in and of itself, illegal as a violation of the international law of self-determination and the international law on the use of force, the latter violation constituting aggression, and including a violation of the prohibition of the purported acquisition of territory, a.k.a. ‘annexation’, through the use of force. This is ‘existential’ illegality—the very existence of Israel’s presence is illegal. Such illegality is distinct from ‘conduct-based’ illegality, which is also occurring—the way Israel conducts itself through its presence in the OPT is also illegal (for example, maintaining and expanding settlements, perpetrating racial discrimination generally, and apartheid in particular, and subjecting the Palestinian people to further abuses, now, in Gaza, of an extremity amounting to genocide, war crimes and crimes against humanity).

Consequence of illegality: invalidity

The illegal nature of Israel’s presence in the OPT necessarily means that, a general matter, everything that Israel has done and is doing there, on whatever basis, is legally invalid. The invalidity of Israel’s acts through its presence in the OPT is qualified insofar as this is necessary to uphold the human rights of the individuals in the territory.

Primary consequence of illegality for Israel: requirement of immediate withdrawal

Various legal consequences for Israel follow from the illegality of its presence in the OPT.  The present focus is the primary consequence: the illegality must end, which in this case means Israel must end its presence. The ICJ held that the Israeli presence in the OPT must be brought to an end “as rapidly as possible”. The General Assembly stipulated that it should be brought to an end “without delay”, and “no later than 12 months” from 13 September 2024.

The inextricable link between the Israeli presence in the OPT and the Israeli state generally

The Israeli presence in the OPT is linked to the Israeli state, including its military, and the Israeli economy and society, including cultural, sporting and educational life, in a complex and multifaced manner so as to be factually and legally inextricable. In consequence, when it comes to the behaviour of third States, and the EU, and all other actors, in their relations with the Israeli state, including the Israeli military, the Israeli economy, and other Israeli actors, including Israeli companies, and universities, it is impossible, because of the way things operate, to meaningfully disaggregate relations that are, one way or another, connected to the Israeli presence in the OPT, and relations that are entirely free of such a connection. When it comes, then, to the obligations that third States and the EU must comply with in these relations as a consequence of the illegal nature of the presence, such obligations have to address the relations as a general matter.

Legal duties of third States and the EU

Third States and the EU have three legal duties to suppress Israel’s violations of international law in maintaining its presence in the OPT.  These are:

1. A positive duty to bring Israel’s illegal presence in the OPT to an end, through both individual and joint, co-operative, means

No particular form of action is prescribed. One option would be to introduce sanctions against Israelis, including government officials, involved in the conduct of the unlawful presence.

2. A negative duty not to recognize as lawful the existence and continuation of Israel’s illegal presence in the OPT

Third States and the EU must not recognize the validity of Israel’s presence in the OPT as a general matter, in and of itself, since to do so would imply that this presence is lawful, breaching the obligation not to recognize it as such. In consequence, they must not recognize as valid anything Israel has done through its exercise of authority there, subject to the aforementioned human rights-based exception. This requires a profound shift of emphasis, from an assumption that Israel’s exercise of authority in the OPT is valid, and focusing only on whether or not, in exercising this authority, Israel violates international humanitarian law. The assumption on which this approach rests is contrary to the legal position on invalidity, and adopting the approach is therefore a breach of the obligation of non-recognition of this invalidity.

The general obligation also includes not recognizing as valid Israel’s justificatory claims, whether expressly or impliedly, for its presence in the OPT, of whatever kind, such as self-defence and the enjoyment of sovereignty.

Underlying the requirement not to recognize any sovereignty claims by Israel is a requirement that third States and the EU must to hold to the general position that the OPT is not the sovereign territory of Israel. They must not, therefore, recognize any claims to sovereignty by Israel over any parts of the OPT, unless such claims are agreed to by the Palestinian people. They must also not recognize the validity of any action which implies or furthers such claims, for example efforts to change the demographic composition of the OPT. They also have, in effect, a positive obligation to ensure that, in their dealings with Israel, in any instance necessary to comply with this obligation of non-recognition, they distinguish between, on the one hand, the territory of Israel, and, on the other hand, the OPT. Examples of the practical implications of these obligations are:

* No diplomatic or consular relations generally with Israel which imply the legality of Israel’s presence in the OPT.

* No recognition of Israel’s illegal presence in OPT in the establishment and maintenance of diplomatic missions to Israel in particular.

* No treaty relations generally that imply an Israeli right to act with respect to all or part of the OPT.

* No invoking or applying existing treaties or treaty provisions, if any, with Israel where it purports to act on behalf of or concerning the OPT.

* No dealings, including economic or trade dealings, that entrench the Israeli presence in the OPT. Given how the economic dimensions of the Israeli presence in the OPT are inextricably linked to the Israeli economy generally, all economic and trade dealings with Israel may entrench the presence.  Third States and the EU must, therefore, adopt a complete reciprocal trade (including arms), finance, investment, scientific, technological, audiovisual, cultural (including tourism), educational and sporting embargo against Israel, including but not limited to an embargo of products from settlements.

* Take positive steps to prevent trade or investment relations that assist in the maintenance of the illegal Israeli presence in the OPT.

* No recognition of any economic exploitation by Israel of the resources in the OPT.

* Take positive steps to ensure nationals, and other non-state actors, including companies and other legal entities under their jurisdiction, do not recognize the situation created by the illegal presence

This requires the following activities to be prohibited:

a. All travel to Israel, including for the purposes of business, tourism, cultural and sporting activities, education and other academic activities including research, university exchanges, conference attendance, employment, residence, service in the armed forces.

b. All trade (including in arms), investment and any other forms of financing, technology transfer, and provision of charitable support, with the Israeli state and Israeli entities, including universities.

c. All other forms of collaboration with the Israeli state and Israeli entities, such as science and technology collaboration, sports games, cultural events, university exchanges and partnerships.

3. A negative duty not to aid or assist in the maintenance of Israel’s illegal presence in the OPT

This obligation is distinct from the more generally-applicable, narrowly-relevant rule from the international law of State responsibility, covering any and all violations of international law by Israel, that a third State is legally responsible if it aids or assists Israel in the commission of one or more of these unlawful acts, and such aid or assistance is given with a view to facilitating the illegality.The issue here is, more simply, an obligation not to provide aid or assistance that will enable the illegal Israeli presence to be maintained. Whether or not the intent behind this provision is to support illegality is irrelevant.

States are prohibited from providing any and all aid or assistance to Israel in maintaining its presence in the OPT. The focus is on the existence of the presence itself, not only how it is being conducted. Given the impossibility of meaningfully distinguishing between such aid/assistance that would end up supporting, one way or another, the Israeli presence in the OPT as distinct from Israel’s other activities, including within Israel, there cannot be any aid/assistance to Israel at all.  A complete embargo on all forms of aid/assistance to Israel as a general matter is therefore required.

On the issue of military aid and assistance in particular, given the way the conduct of the presence in the OPT is inextricably linked to the operation of the Israeli military system as a general matter, there can be no aid or assistance to Israel’s military at all. Moreover, given that it is the military presence in the OPT, in and of itself, that is unlawful, the ban has to cover all elements of aid that supports the Israeli military, not just providing arms that can be and are being used to perpetrate violations of international humanitarian law.

When it comes to trade, investment, and scientific, technological, cultural, educational and sporting relations, it is necessary, as with the obligation of non-recognition, to implement a complete trade (including arms), finance, investment, scientific, technological, audiovisual, cultural (including tourism), educational and sporting embargo, operating reciprocally, on Israel as a general matter (so including, but not limited to, settlements) in order to ensure that trade, investment and scientific, technological, cultural, educational and sporting relations do not end up assisting in the maintenance of the illegal Israeli presence in the OPT.

Third States must exercise their national legal jurisdiction to regulate their own nationals, and all other non-state actors, including companies and other entities, in their territorial jurisdiction, to prevent them from providing any aid or assistance to the Israeli presence in the OPT. This requires the same ban as outlined above in the context of the obligation of non-recognition.

Legal rights of third States and the EU to invoke the illegality of Israel’s presence in the OPT

Given that the norms violated by the existence of Israel’s presence in the OPT—the right of self-determination and the prohibition of aggression—have erga omnes status, all States, and the EU, have a legal right to invoke the illegal nature of this presence, and call upon Israel to bring it to an end immediately.  They also have the legal right to invoke any breaches by other third States of the aforementioned suppression duties (2) and (3) (the obligations not to recognize or aid or assist Israel’s illegal presence), and likewise call for these breaches to end immediately. These rights are vested in all States individually, and can be exercised individually and collectively, including, in the case of EU States, through the EU. 

Significance for the EU-Israel Association Agreement

The EU-Israel Association Agreement was adopted in 2000. At that time, the predominant focus within the EU was only on illegality in the OPT in terms of how Israel conducted the occupation, rather than also the occupation being itself illegal. When the focus shifts to existential illegality, as is now demanded by the OPT Advisory Opinion and the implementing resolution of the General Assembly, more fundamental and wide-ranging illegality is at issue. Moreover, as indicated, there is a complex, inextricable relationship between all facets of the Israeli state, economy, and society with the presence at this more general, wide-ranging level, which makes it impossible to meaningfully disaggregate, so as to identify areas where co-operation is possible without recognizing, or aiding and assisting, in the illegal presence.  Hence, duties (2) and (3) mean that there cannot be co-operation as a general matter.  Indeed, as indicated, they require the adoption of a complete, reciprocal, trade (including arms), finance, investment, scientific, technological, audiovisual, cultural (including tourism), educational and sporting embargo against Israel.

The EU-Israel Association agreement is, therefore, fundamentally incompatible with this new (to many EU States and the EU itself), authoritatively-established understanding of the true nature of the illegal character of the Israeli presence in the OPT. In particular, most of its provisions are now incompatible with legal duties (2) and (3): viz. those that cover free trade, scientific and technological co-operation, economic co-operation, cooperation on audiovisual and cultural matters, information and communication, and social matters.

The EU-Israel Association agreement must, therefore, be terminated, in order to bring the actions of EU States, and the EU itself, in line with their obligations in international law as set out herein.