23 Dec The Illegality of the Israeli Occupation of the Palestinian West Bank (including East Jerusalem) and Gaza: What the International Court of Justice Will Have to Determine in its Advisory Opinion for the United Nations General Assembly
[Ralph Wilde is a member of the Faculty of Laws, University College London, University of London, the 2022 Peace Fellow, Ålands fredsinstitut (Åland Islands Peace Institute), and the 2022 Research Fellow, British Academy Council for British Research on the Levant Kenyon Institute, Al-Quds/Jerusalem. Photograph by the Author.]
Advisory Opinion Request
On 30 December 2022, the United Nations General Assembly voted to request that the International Court of Justice…
…render an advisory opinion on the following questions, considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:
(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 … (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?
On the same day, I published a Legal Opinion, dated 29 November 2022, explaining what it means in international law to characterize the Israeli occupation of the Palestinian West Bank (including East Jerusalem) and Gaza as ‘illegal’. The Opinion can be found here. A summary follows below.
The Opinion is partly based on my academic publications on the subject, which themselves draw on and cite the relevant primary and secondary sources: ‘Tears of the Olive Trees: Mandatory Palestine, the UK, and accountability for colonialism in international law’ in the Journal of the History of International Law (2022); ‘Using the Master’s Tools to Dismantle the Master’s House: International Law and Palestinian Liberation’in the Palestine Yearbook of International Law (2021); ‘Compliance with human rights norms extraterritorially: ‘human rights imperialism’?’, Chapter 16 in Le droit international et la quête de sa mise en œvre, Liber Amicorum Vera Gowlland-Debbas (Laurence Boisson de Chazournes & Marcelo Kohen, eds., Brill 2010); and International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP 2008), Chapter 8. It is also based on an Expert Opinion written for the NGO Diakonia, ‘Applicability of Human Rights Law in Palestine’ (2019), and two public lectures: ‘Using the master’s tools to dismantle the master’s house: international law and Palestinian liberation’, British Academy Council on British Research on the Levant Kenyon Institute, Al-Quds/Jerusalem, 2022; and ‘Human Rights in Occupied Territories’, 2022 Åland Peace Lecture, Mariehamn, Åland.
Legal Opinion Summary
This Opinion clarifies what the terms ‘legal’/‘illegal’ mean, in relation to the occupation of the Palestinian West Bank (including East Jerusalem) and Gaza, according to the relevant, multiple areas of applicable international law. It explains how the different forms of ‘legality’/ ‘illegality’ relate to each other, and how they apply to the occupation. In each area of law, it explains what difference ending illegality would make (e.g., ending abuses, preventing annexation, ending the occupation itself). The meaning and significance of the following terms/areas of international law are explained: self-determination; settler colonialism; the jus ad bellum/law on the use of force/aggression; (belligerent) occupation/prolonged occupation; statehood; sovereignty; title to territory; annexation; apartheid; jus in bello/law of armed conflict/international humanitarian law (IHL)/laws of war/occupation law; international human rights law (IHRL); international criminal law (including the crime of aggression, war crimes, crimes against humanity, the crime of apartheid, the crime of torture); United Nations law and the law of treaties.
Legality/illegality can refer to the existence of the occupation, or its conduct, or both.
As to existential legality/illegality, the occupation, simply by virtue of exercising control over the West Bank (including East Jerusalem) and Gaza, and consequently preventing the Palestinian people from full and effective self-governance, constitutes a fundamental impediment to the realization of the right of self-determination enjoyed by the Palestinian people in international law.
The only basis such an impediment could be legally justified is according to the law on the use of force—the jus ad bellum. Assuming, hypothetically, that Israel had a right of self-defence in 1967 that justified, legally, the introduction of the occupation then, this justification has not persisted, nor has an alternative legal justification arisen. There has been no actual or imminent armed attack justifying, as necessary and proportionate, the occupation as a means of self-defence. And the doctrine of preventative self-defence, justifying the occupation as a means of stopping a threat from emerging, has no basis in international law. Neither United Nations Security Council Resolution 242, nor the so-called Oslo Accords, provide an alternative legal basis for the existence/continuation of the occupation. Indeed, the Oslo Accords are themselves violative of international law, because ‘consent’ to them by the PLO was coerced through the illegal use of force, and, relatedly, they conflicted with norms of international law that have a special non-derogable/jus cogens status (the prohibition on the use of force other than in self-defence, and the right of self-determination). More generally there is no international law right to maintain the occupation pending a peace agreement, and/or as a means of creating ‘facts on the ground’ that might give Israel advantages in relation to such an agreement, and/or as a means of coercing the Palestinian people into agreeing a settlement to the situation that they would not accept otherwise.
The consequence of the foregoing is that there is no valid international law basis for the existence of the occupation. In consequence, the occupation is an unlawful use of force, an aggression, and a violation of the right to self-determination of the Palestinian people, on the part of Israel and, in the case of aggression, also a crime on an individual level for senior Israeli leaders. As a result, the occupation is existentially illegal and must end immediately. Legally, the requirement of termination is not contingent on particular circumstances being present. Specifically, the following factors or conditions cannot be, by themselves, a pretext for delaying termination: willingness/consent by Israel; the adoption of a peace agreement; the adoption of standards within or the giving of undertakings by the Palestinian people; approval by the UN, the Quartet, other states etc. In consequence, every day the occupation continues is a breach of international law.
The existential illegality of the occupation arises out of the simple fact of the occupation as a system of control and domination without a valid legal basis. This is then compounded by the occupation’s prolonged duration, its link to de jure and de facto annexation, and the egregious abuses perpetrated against the Palestinian people. The use of military force to annex territory is also an independent basis for existential illegality: also a violation of the international law on the use of force, and so also an aggression at both a state level and in terms of individual criminal responsibility. (By contrast, the prolonged length of the occupation, and its abusive nature, are not independent bases for existential illegality, but are relevant, as aggravating factors, to the question of existential legality as a matter of the law on the use of force; the abusive nature is also relevant to the separate matter of legality/illegality of conduct). Any purported annexations are also without legal effect, because in international law Israel is not and cannot be sovereign over any part of the West Bank or Gaza, including East Jerusalem, through the assertion of a claim to this effect based on the exercise of effective control enabled through the use of force, and in the absence of consent to such annexation freely given by the Palestinian people.
As to the legality/illegality of the conduct of the occupation, there are multiple, egregious breaches of the relevant areas of applicable international law: the laws of war/law of armed conflict/jus in bello/international humanitarian law including occupation law, international human rights law generally, and, within this, the prohibition of racial discrimination generally and the prohibition of apartheid in particular. These are breaches at the level of the state of Israel, and also, in some cases, individual crimes—war crimes, crimes against humanity, the crime of apartheid and the crime of torture.
The occupation is thus illegal in both its existence and its conduct, and in both cases this gives rise to both state and individual criminal responsibility.
(All the main areas of international law violated—the prohibition on the use of force other than in self-defence/the prohibition of aggression; the right of self-determination; the prohibition of racial discrimination generally and apartheid in particular; a sub-set of the protections in IHL; the prohibition of torture—are norms that have the special non-derogable/jus cogens status mentioned above in connection with the Oslo Accords. Jus cogens is not a separate category of substantive international legal rules but is, rather, a way of characterizing certain rules as being of a special character when it comes to their interaction with other rules of international law.)