Palestinian Self-Determination between Sovereignty and Conquest: Exploring Public and Private Power in the recent ICJ’s Advisory Opinion on the Illegality of Israel’s Occupation

[Michelle Burgis-Kasthala is Professor of International Law and Global Governance at the University of Edinburgh Law School. Matilde Masetti Placci is a PhD candidate at the University of Edinburgh Law School, and her thesis focusses on the history and theory of international law.]

On 19^th July, the ICJ handed down its long-awaited advisory opinion examining the legal status of Israel’s occupation across the Palestinian territories of East Jerusalem, the West Bank and the Gaza Strip. While the Court explicitly shelved analysis of Israel’s assault on Gaza since October 2023 (para. 81), its findings undoubtedly contribute to the growing arsenal of jurisprudential analysis that is rupturing the legitimacy of Israeli rule over the Palestinian people. Most simply, the Court held that Israel was in breach of various IHL and IHRL requirements incumbent upon on it as the occupying power. The culmination of these practices was suggestive of sovereign power amounting to conquest over the occupied territories. Such policies constitute a breach of the ius cogens norms relating to the use of force, the acquisition of territory as well as the right to (Palestinian) self-determination.  In its analysis of these Israeli practices and policies, the Court offers a fascinating excursion into the nature of sovereign power as realised in the case of Israel and as in abeyance (p. 150) in the case of Palestine. Here, we adopt a feminist-inspired methodology to explore how modes of public and private power inform the making and consecrating of states under international law. 

The regime of belligerent occupation rests on a peculiar and delicate balance between military necessity and protection of the local population. Within such an undemocratic relationship of (un)governance arising from de facto foreign control, sovereignty is elusive. The Occupying Power is forbidden from acquiring title to the territory, but it is permitted to exercise various elements of public power (2024 advisory opinion, para. 109). In its 2004 advisory opinion on the legality of Israel’s wall, the Court had catalogued a series of IHL and IHRL breaches arising from its rule over the West Bank and East Jerusalem. Yet while in 2004 it tended to denote Israel’s settlement enterprise in particular as constitutive of de facto annexation, 20 years later, its language has become far bolder and clearer. Without providing a specific date or detailed territorial parameters (para. 179), the Court characterises Israeli rule as sovereign (paras 158-173). 

On which modes of public and private power does Israeli sovereignty arise? How are Palestinian ties to the land instead constitutive of a legitimate – if unfulfilled – sovereign title? First and most significantly, the Court sets up a contest between subsisting public and private Palestinian rights and those of the occupying power which also manifest in public and private registers. The Court is most categorical about the unqualified prohibition against private property confiscation as per Article 46 of the Hague Regulations and finds (para. 123) that Israel has systematically breached this norm both through its proclamation of requestioned property as (public) State lands and their frequent transformation into (privately held) settlements. Later in its consideration of Israeli discriminatory treatment (paras 208-222), the Court also presents Israeli house demolitions as a contest between Israel’s claimed ‘legitimate public aim’ (para. 205) and Palestinian private rights, but also, public rights as these acts of collective punishment limit the realisation of Palestinian self-determination. The Court also identifies subsisting public rights of the Palestinian people through the notion of sovereignty over natural resources (paras 124-133). While there is some room for Israel to use resources for its public claims of military necessity alongside the needs of the Palestinian population, again the practice of using public Palestinian resources for the public and private interests of the Israeli population is found to breach the requirements of occupational usufruct. 

Notions of subsisting rights also inform the Court’s reasoning in relation to Israel’s extensive application of its own domestic laws – its public powers – across East Jerusalem and to its settler population in the remainder of the West Bank. In contrast to Israelis subject to domestic civilian laws, ‘Israel has to a large degree substituted its military law for the local [public] law’ (para. 136), placing Palestinians at the mercy of foreign military courts. In examining the discriminatory quality of Israel’s exercise of this public power, detailed accounts of direct state violence against Palestinians as well as extensive failures to rein in (private) settler violence, the Court is also suggesting that the exercise of this public power is illegitimate and corrupt. Here, we see a fundamental tension then between two competing visions of public power – between Israeli attempts to extend its sovereign prerogative across the entirety of historic Palestine versus Palestinian self-determination that is the product of subsisting private and public rights to the territory. While the Court creates a series of dualisms in charactering Palestinian claims, it also underscores how self-determination rests most crucially on territorial, demographic and economic and cultural integrity (para. 238-241). Only where the Palestinian people can decide how to exercise unfragmented public power throughout the territories can they be fulfilling their right to self-determination.  

The settler as a legal persona illustrates this fusion of public and private interests as well as its utility when it comes to delineating Israel’s obligation to withdraw immediately and unconditionally. In its short overview of violence against the Palestinians in the occupied territories, the Court distinguishes between settler violence and ‘public’ violence enacted directly by Israeli security forces. It mentions the overlap between the two types of Israeli presence when it notes that Israeli security forces (which include law enforcement and military personnel) often fail to prevent or punish settler violence (para. 154). The nature of the settler’s presence and powers is not clearly delineated or explored. Curiously, the most detailed exploration can be found in Vice President Sebutinde’s dissenting opinion, where she describes the settlers as a heterogenous group comprised of some relatively recent landowners and others who may have acquired land prior to 1948, under Article 6 of the Mandate for Palestine, which promoted the establishment of Jewish settlements in the territory (para. 89). Most importantly, because the settler is a private citizen and landowner, she is understood as separate from the public elements which brought about her presence in the West Bank in the first place. Vice President Sebutinde does away with the question of population transfer (as prohibited under Article 49 of the Fourth Geneva Convention) by pointing to the lack of evidence indicating the forcible transfer of Israeli citizens into the West Bank. 

Not only is this an unreasonably restrictive reading of the Article – the portions which relate to the transfer of populations into occupied territory do not require the Occupying Power’s coercion or other threats of force – it also overlooks the public dimension of this phenomenon. The 2018 Basic Law is a rare, explicit articulation of Israel’s subjective understanding of what the exercise of the right to self-determination looks like; by describing the establishment of settlements as “a national value”, with the government directed to “encourage and promote [their] establishment and consolidation,” Israel has explicitly extended its public powers to include security and livelihood guarantees to private citizens. The settler is not just any other private individual; she knowingly takes advantage of practices and policies which have been established for her benefit: she is an emanation and constituent of the Israeli ‘public’ in the occupied territories. This implicates her removal within Israel’s general obligation to withdraw totally and unconditionally: understanding her as a mere private citizen removed from the State apparatus is what allows judges Sebutinde and Iwasawa to consider the protection of settlers as one ‘legitimate security interest’ justifying a conditional or partial withdrawal. 

Are these considerations of the Court best characterised as a bilateral (private) dispute then or do they directly implicate international law and if so, how? While Vice President Sebutinde argues strongly in favour of the matter as best conceived through the prism of a bilateral dispute, Judge Tladi counters that ‘the depravation of some of the most fundamental rights of a people is an issue which concerns all of humanity’ (para. 11). Characterising the matter as a bilateral dispute would be ‘dangerous’ not only for Palestinians (para. 44), but all those committed to the notion of an ‘international community’ (para. 13), no matter how nascent. Here we see then a contest between containing the matter as a private dispute between two claims to public power over a territory versus a vision of universalised public values that trump particularised governance claims in the interest of justice for all peoples. 

This points to the bigger picture: Israeli policies and practices in the occupied territories aim not only to strengthen Israeli claims to historical Palestine, but also to weaken and erase Palestinian society and identity. Given the scope and duration of Israeli violations of the Palestinians’ right to self-determination, the question becomes: how can this harm be redressed? The Court provides a formulaic answer including ‘full reparation’, compensation and/or restitution of assets (paras 269-271). This approach fails to grasp the key trauma which has been inflicted and which speaks to what the right to self-determination is intended to protect: the ability of a people to determine and enjoy their own collective identity, whatever its emanations and forms. The peremptory right to self-determination is a consequence of the recognition that all collectives are entitled to equality and dignity (Tladi J, para. 11). When Israeli public practices and policies question whether a Palestinian public and attendant identity even exists (which Vice President Sebutinde argues is historically questionable, at para. 9) and systematically destroy Palestinian social and cultural life, we are not witnessing ‘mere’ apartheid; we are witnessing the destruction of an identity so comprehensive that the question of self-determination becomes moot.

This second opinion’s comparative bleakness has been noted. This is unsurprising, as Israel can no longer defend its pervasive and open-ended presence through any extant international norms; we are looking at total domination pending conquest. This goes beyond anything the Court has been faced with: in South West Africa, South Africa did not defend its apartheid policies in reference to security interests, rather, it argued that the supposed inaccuracy of the Ethiopia and Liberia’s submissions was a ‘compelling reason’ for the Court to decline rendering the opinion (pp. 743-745). In Chagos, the UK’s arguments centred around the legality of the Archipelago’s 1965 handover, not the existence of the Chagossians in toto (paras 8.78 et seq). In remaining relatively ambivalent about the nature of the right to self-determination (is it only in cases of foreign domination? This leaves open the question, again, of whether Israel’s presence is ‘foreign’ or simply a counter claim to self-determination, as Vice President Sebutinde would have it) the Court has missed an opportunity to grasp the existential pain and suffering the Palestinian people have been subjected to since at least 1948. 

State Responsibility – a regime built from private law principles and transposed to public international law – was never meant to deal with such trauma: the restitution of olive groves and villages pales in the face of a people who, for generations, have been forced to live as refugees in pockets of their own land. Restrictions on movement, meaningful work, and collective expression through protest have hollowed out and warped Palestinian communities – especially women and children ‘unchilded’, who have faced compounded, intersectional harms under occupation (Charlesworth J, sep. op). Indeed, the Court’s narrowly material understanding of self-determination and its redress through the confines of State Responsibility mean that it never considered the Palestinian diaspora, which has only grown as a direct result of Israel’s practices and policies since its 1967 occupation, but more fundamentally, its creation in 1948 during the Nakba. Thus, international law is ill-equipped to comprehend emerging States whose pre-existing components (territory, population) are denied. The recognition and redress of (public) collective and (private) individual trauma would have vindicated the purpose of the right to self-determination: to consecrate a people’s pending claim to identity, expressed, inter alia, as statehood.