The Occupation is Illegal. Now What?

[Jinan Bastaki is Associate Professor of Legal Studies at New York University, Abu Dhabi]

On 19 July 2024, almost exactly twenty years after the ICJ delivered its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“the Wall case”), finding that “the construction of the wall, and its associated régime, are contrary to international law,” (para. 142), the same court gave its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem(“the OPT case”).The Court found that,

The sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful.

para. 261, emphasis added

The court then dedicated seven paragraphs (para. 273-279) to detailing the legal consequences for other states. Paras. 276-278 emphasize the importance of distinguishing between dealings with Israel concerning their own territory and those that concern the OPT. Yussef al-Tamimi published an excellent post on the implications of the Advisory Opinion for EU member states, and the changes that would need to be made to be in conformity with their international obligations, such as “plainly prohibit[ing] and penaliz[ing] economic activities in occupied territory,” among others.

My purpose here is to go beyond the obligation to distinguish between the OPT and Israel in states’ dealings, which the court was explicit about. The goal of this post is to examine states’ obligations to bring about an end to serious breaches of international law.

Peremptory Norms in International Law and Obligations erga omnes

In the OPT case, the court stated that, “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law,” (para. 233). This is the only time that peremptory norms are mentioned in the entire opinion even though, as noted by Judge Tladi in his separate opinion, “other norms that undoubtedly qualify as jus cogens are not referred to as such. These are the prohibition on the use of force, the prohibition of apartheid and some of the basic principles of international humanitarian law,” (Judge Tladi, Declaration, Para. 15). This seems to be due to the Court’s “historical reluctance to pronounce itself clearly on the peremptory status of norms that are widely accepted as having that character,” (Judge Tladi, Declaration, para. 16). Regarding the apparent qualification – “in cases of foreign occupation such as the present case” – Judge Cleveland explained that, since foreign occupations would usually involve temporary denial of some aspects of self-determination, “the Court intended to make clear that it is the particular features of Israel’s prolonged occupation that analogize it to a situation of alien subjugation and foreign domination which implicate the right to self-determination as a peremptory norm.” (Judge Cleveland, Separate Opinion, para. 33).

While the court mentioned peremptory norms only once, it mentioned obligations erga omnes – i.e. the concern of all States – that Israel had violated numerous times. These are: “the obligation to respect the right of the Palestinian people to self-determination and the obligation arising from the prohibition of the use of force to acquire territory as well as certain of its obligations under international humanitarian law and international human rights law,” (The OPT Case, para. 274). Is there a difference between characterizing obligations erga omnes and having the status of a peremptory norm?  The judges had different opinions. Judge Gomez Robledo, for example, stated that “that characterization [jus cogens] could already be inferred from the legal consequences repeatedly identified by the Court as a result of its violation…” (Judge Gomez Robledo, Separate Opinion, para. 22). The consequences mentioned in the AO are the obligation of non-recognition and non-assistance. He lamented, however, that “the Court has not directly established the link between the finding that the right to self-determination has the status of a peremptory norm and the consequences of its violation,” (para. 22). Judge Cleveland, on the other hand, stated that “the Court did not need the pronouncement that self-determination constitutes a peremptory norm of international law for its analysis and did not adopt it for that reason,” (Judge Cleveland, Separate Opinion, para. 35; emphasis added). Judge Tladi was most critical, showing that consequences for third-states are as a result of breaching peremptory norms, and not because of the erga omnes character of some obligations, and hence the court should have been clearer (Judge Tladi, Declaration, paras. 28-32). That said, the obligations erga omnes mentioned in para. 274 (quoted above) are also widely recognized as having the status of peremptory norms; the consequences that flow from their breach still apply. Furthermore, self-determination was explicitly identified as a peremptory norm.

Consequences of Breaching Peremptory Norms

The ILC’s 2022 Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens) (“Draft Conclusions”) states that the consequences for serious breaches of peremptory norms are as follows:

1. States shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens).

2. No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens), nor render aid or assistance in maintaining that situation.

Conclusion 19; emphasis added

In the OPT case, the court mainly emphasized the second set of consequences, which are broadly negative obligations, and gave specific details, such as abstaining from treaty relations with Israel where it purports to act on behalf of the OPT, and avoiding entering into economic or trade dealings concerning the OPT, among others. Some states and international organizations already had policies to differentiate between the OPT and Israel. The EU’s European Neighborhood Instrument’s (ENI) Cross-Border Co-operation ‘Mediterranean Sea Basin Programme’ financing agreement, for example, explicitly states that it “shall not apply to the geographic areas that came under the administration of the State of Israel after 5 June 1967”; however, not all agreements make this distinction. The Advisory Opinion can be used to bolster such clauses in international agreements.

Fewer details were given regarding the first consequence – how should states cooperate to bring the breach to an end?

The ICJ stated that, “the precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory is a matter to be dealt with by the General Assembly… as well as the Security Council. Therefore, it is for the General Assembly and the Security Council to consider what further action is required to put an end to the illegal presence of Israel… ” (para. 281). While the role of the General Assembly will be discussed in the next section, the Security Council is not likely to pass any resolutions putting real pressure on Israel, such as deciding that there should be a mandatory arms embargo, for example. Indeed, even the Gaza ceasefire resolution that was passed in March 2024 – after several prior vetoed resolutions – was claimed to be non-binding by the US. Indeed, the Security Council can be considered an obstructor to the ending of the violation.

The ILC provides some clarification on the duty of states more broadly. In the ILC’s commentary on Article 41 (1) of the Draft articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), it clarified that “States are under a positive duty to cooperate in order to bring to an end serious breaches.” (emphasis added).  Due to “the diversity of circumstances which could possibly be involved” there are no details given on the form that the cooperation should take, nor the measures, but the commentary gives the example of “the framework of a competent international organization, in particular the United Nations.” That said, “non-institutionalized cooperation” is also a possibility. The ILC also emphasized that “the obligation to cooperate applies to States whether or not they are individually affected by the serious breach.”

The ILC’s 2022 commentary on the Draft Conclusions states that the obligation to bring about an end to the breach is “now recognized under international law.” The elements identified by the ILC are:

• Bringing an end to serious breaches of obligations must be done through lawful means.
• Unilateral measures are not prohibited, but emphasis is on collective measures, including ad hoc arrangements by a group of States.
• Collective system of the UN is preferred, but other international organizations may also do so.
• The Wall case suggests that there is also an obligation on individual States to make efforts to bring situations created by the breach to an end.

Article 48(b) of ARSIWA provides some further guidance. It states that, “Any State other than an injured State is entitled to invoke the responsibility of another State… if… the obligation breached is owed to the international community as a whole,” i.e. obligations erga omnes. Article 54 affirms the right of any state, when it comes to obligations erga omnes, to take lawful measures against a responsible State to induce it to comply with its obligations of cessation and reparation.

Finally, as highlighted by Rebecca Barber, in the Bosnia v. Serbia (2007) case, the ICJ used the well-established concept of ‘due-diligence’ in international law to determine the scope of the duty to prevent genocide, which had not been elaborated upon before. Due diligence has been used in different areas of international law to provide substance to certain State obligations, particularly those that had been unclear. The due diligence standard as described by the Study Group on Due Diligence of the International Law Association (ILA) in 2016 is:

a standard of reasonableness … that seeks to take account of the consequences of wrongful conduct and the extent to which such consequences could feasibly have been avoided by the State or international organisation that either commissioned the relevant act or which omitted to prevent its occurrence.

Employing this standard here is important, given the indeterminate nature of the obligation, as well as the limitations inherent in the Security Council (veto), and the General Assembly (non-binding recommendations). In Bosnia v. Serbia, the Court explained that a state’s capacity to influence depended, among other things, “on the strength of the political links, as well as links of all other kinds,” (para. 430). In assessing collective and individual efforts to bring about the end of a breach of a peremptory norm, states and international organizations should evaluate the strength of their various ties, and take action with the aim of ending the breach accordingly.

Collective Action

The court explicitly stated that the precise modalities to bring Israel’s presence in the OPT to an end should be determined by the General Assembly, which had requested the Advisory Opinion; and the ILC notes that cooperation – collective action – is preferred. Furthermore, the ICJ emphasized that states “must co-operate with the United Nations” (para. 275, emphasis added) to put the modalities into effect. While General Assembly resolutions are generally non-binding, when it comes to the breach of peremptory norms, the ILC stated in its 2019 commentary that this “has particular consequences for cooperation within the organs of the United Nations and other international organizations.” It further stated that,

… where an international organization has the discretion to act, the obligation to cooperate imposes a duty on the members of that international organization to act with a view to the organization exercising that discretion in a manner to bring to an end the breach.

The GA has a better record of recommending measures in order to end serious breaches of international law than the Security Council. In 1962, the GA adopted resolution 1761 requesting member states to break diplomatic, trade and transport relations with South Africa, and again in 1968 it requested the suspension of all cultural, educational and sporting exchanges (GA Resolution 2396), in order to pressure South Africa to repeal its apartheid laws. The Security Council only caught up in 1977 (SC Resolution 418), after the Soweto Uprising and the violent assault on black protestors, when they finally voted to impose a mandatory embargo on the sale of arms to South Africa (they had passed a resolution on voluntary arms embargo in 1963). In the present case, the ICJ stressed that states must cooperate with the UN.

Additionally, collective action, as noted by the ILC, can be through international organizations other than the UN. The African Union, the League of Arab States, the European Union, and the Organization of American States may take measures of their own, including arms embargoes, breaking diplomatic ties, and suspending cultural and educational exchanges with Israel in order to bring about the end of the breach. In response to Russia’s annexation of the Crimea in March 2014, and the stalemate at the Security Council, for example, the EU progressively imposed measures against Russia, including asset freezes and visa bans targeted on certain individuals, in addition to diplomatic, sectoral and economic sanctions, and the suspension of Russia from the G8. These organizations can use General Assembly resolutions as a springboard.

Individual Action

While cooperation is encouraged, states have an individual obligation to bring the breach to an end. As the ICJ mentioned in the Bosnia v. Serbia case, if all states acted individually “the combined efforts of several States, each complying with its obligation to prevent” (para. 430) may avert the commission of genocide. Similarly, several states acting individually, through lawful means, may help to bring about the end of the breach of the peremptory norm. While practice at the time of the adoption of ARWISA (2001) appeared to be limited, the ILC referenced “economic sanctions or other measures (e.g. breaking off air links or other contacts)” and proceeded to give examples of individual and collective measures, such as the US adopting legislation in 1978 prohibiting exports of goods and technology to, and all imports from, Uganda due to genocide, and collective trade embargoes against Iraq in response to the invasion of Kuwait in 1990. Other examples include Jamaica, for example, banning goods from apartheid South Africa as early as 1959 – the first country to do so – before the General Assembly or the Security Council passed resolutions on the issue. Indeed, regarding self-determination in particular, the UN General Assembly emphasized that, “[e]very State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples…” (GA Res 2625 (XXV)).

Peremptory norms “reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable,” (ILC Draft Articles, Conclusion 2). The court affirmed that self-determination constitutes a peremptory norm of international law, and that Israel’s unlawful policies and practices aggravate their violation of the right of the Palestinian people to self-determination. Particularly in the face of probable inaction by the Security Council, states as well as international organizations must ensure that the obligation to end the breach is not empty of content.