Study on the Legality of the Israeli occupation of the Occupied

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This is an independent publication commissioned by the United Nations General Assembly

Committee on the Exercise of the Inalienable Rights of the Palestinian People. The analysis

and statements of this report do not necessarily reflect the views of the United Nations or the

Committee.

Any inquiries about this publication should be addressed to the Committee’s Secretariat, email:

unpalestinecommit[email protected]

Information on the Committee can be accessed at:

https://www.un.org/unispal/

Any quotation of up to 500 words may be used without permission provided that full attribution

is given. Longer quotations, entire chapters, or sections of this study may not be reproduced

or transmitted in any form or by any means – electronic, mechanical, photocopying, recording

or otherwise – or stored in any retrieval system of any nature, without the express written

permission of the Committee’s Secretariat.

The United Nations Committee on the Exercise of the Inalienable Rights of the Palestinian

People (CEIRPP) was established in 1975 by General Assembly resolution 3376. The General

Assembly requested that the Committee recommend a programme of implementation to enable

the Palestinian people to exercise their inalienable rights to self-determination without external

interference, national independence and sovereignty; and to return to their homes and property

from which they had been displaced. At the beginning of each calendar year, the Committee

elects its Bureau and adopts a Programme of Work. Assisted by the Division for Palestinian

Rights, the Committee organizes international meetings and conferences, conducts an annual

training programme at United Nations Headquarters and several other capacity-building

activities, cooperates with civil society organizations worldwide, maintains publications and

an information programme, and holds each year, on or around 29 November, a special meeting

in observance of the International Day of Solidarity with the Palestinian People. The

Committee reports to the General Assembly on the implementation of its Mandate through its

Annual Report.

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Table of Contents 
 
Foreword .................................................................................................................................... 6 
Executive Summary ................................................................................................................... 7 
I. Introduction .......................................................................................................................... 15 
A. Outline ............................................................................................................................. 15 
B. Methodology ................................................................................................................... 16 
II. The nature of belligerent occupation ................................................................................... 18 
A. Principles governing belligerent occupation ................................................................... 18 
1. De facto nature of belligerent occupation .................................................................... 19 
2. Temporary nature of belligerent occupation ................................................................ 20 
3. The contemporary practice of prolonged occupation .................................................. 21 
4. Occupying Power does not have sovereignty .............................................................. 22 
5. Best interests of the occupied population .................................................................... 23 
6. Conservationist principle ............................................................................................. 24 
7. Security interests of occupying Power ......................................................................... 25 
B. Illegal occupations jus in bello ........................................................................................ 25 
C. Illegal occupations jus ad bellum .................................................................................... 26 
1. Iraq’s occupation of Kuwait......................................................................................... 26 
2. Armenia’s occupation of Azerbaijan ........................................................................... 27 
3. Uganda’s occupation of Ituri, Democratic Republic of Congo ................................... 27 
4. Vietnam’s occupation of Democratic Kampuchea ...................................................... 28 
5. South Africa’s occupation of Namibia ........................................................................ 28 
6. Portugal’s occupation of Guinea-Bissau ...................................................................... 29 
7. Israel’s occupation of Palestine ................................................................................... 29 
D. Israel’s positions on occupied Palestine.......................................................................... 30 
1. Israel’s arguments on belligerent occupation .............................................................. 30 

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2. Israel’s legal arguments pertaining to settlements ....................................................... 32 
3. Israel’s arguments pertaining to annexation ................................................................ 33 
4. Concluding remarks ..................................................................................................... 34 
III. Legality of occupation ....................................................................................................... 35 
A. Unlawful occupation arising from an act of aggression ................................................. 35 
B. Unlawful occupation arising from a breach of self-defence ........................................... 36 
1. Violations of peremptory norms breach necessity and proportionality ....................... 38 
2. Annexation, an illegal acquisition of territory breaching self-defence ........................ 39 
3. Belligerent occupation denying the exercise of the right of self-determination .......... 43 
4. Belligerent occupation breaching the prohibition on apartheid ................................... 45 
C. Unlawful occupation in breach of the right of external self-determination .................... 46 
1. Using force to deny the exercise of the right of external self-determination............... 47 
2. South Africa’s illegal occupation of Namibia (South West Africa) ............................ 48 
IV. Is there available evidence to support a finding that Israel’s occupation has become 
illegal? ...................................................................................................................................... 51 
A. Illegal occupation arising from an unlawful aggressive use of force ............................. 51 
1. Israel’s use of force against Egypt is an act of aggression .......................................... 51 
2. Israel’s armed attack as an act of self-defence against the Egyptian blockade............ 53 
3. Israel’s armed attack as an act of self-defence against border attacks ......................... 54 
4. Subsequent international resolutions highlighting acts of aggression ......................... 56 
B. Israel’s administration of occupied Palestine breaches peremptory norms .................... 57 
1. Jus contra bellum, prohibition of acquisition of territory by force.............................. 57 
2. Israel’s acts denying Palestinian right to self-determination breach the necessity and 
proportionality principles for self-defence....................................................................... 67 
3. Israel’s occupation as an act of apartheid and violation of jus cogens norm ............... 74 
C. Israel’s administration of occupied Palestine breaches the right of the Palestinian people 
to external self-determination .............................................................................................. 78 

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1. Denial of Palestinian self-determination is a breach of “sacred trust” ........................ 78 
2. The continuing right of the Palestinian people to an independent state ...................... 81 
D. Concluding remarks ........................................................................................................ 82 
V. Obligations of the international community in bringing illegal occupations to an end ...... 83 
A. Specific obligations regarding the Israeli occupation ..................................................... 83 
1. Cessation and non-repetition........................................................................................ 84 
2. Forms of reparation ...................................................................................................... 86 
B. What legal consequences arise, for all States and the United Nations, to bring illegal 
occupation to a complete and immediate end in conformity with international law? ......... 93 
1. Third State responsibility for internationally wrongful acts ........................................ 94 
2. Responsibility of the United Nations ........................................................................... 96 
VI. Conclusion ....................................................................................................................... 100 
  
   

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Foreword

It is with a deep sense of responsibility that on behalf of the United Nations Committee on the

Exercise of the Inalienable Rights of the Palestinian People, I present this groundbreaking

Study on the Legality of the Israeli occupation of the Occupied Palestinian Territory, including

East Jerusalem. As the Chair of the Committee, it is my honour to endorse this comprehensive

examination, which has been meticulously researched and drafted by the Irish Human Rights

Centre of the National University of Ireland in Galway.

The relevance and urgency of this study cannot be overstated. The Israeli occupation which

started in 1967 is the only reality generations of Palestinians have grown up with. It continues

to have far-reaching implications on the lives and rights of the Palestinian people. It is

incumbent upon us, the international community, to deepen our understanding of the legal

issues raised by this prolonged occupation and its profound impact on human rights, peace and

stability in the region.

Against this backdrop, the study on the legality of the Israeli occupation fills a critical

knowledge gap. This thorough legal analysis aspires to contribute to an informed discourse,

empowering individuals and institutions with the knowledge and tools to advocate for justice,

accountability and the realization of the inalienable rights of the Palestinian people. By

examining the relevant international legal instruments, conventions and resolutions, the study

also provides a comprehensive appraisal of the legal obligations and responsibilities incumbent

on the occupying Power and the parties involved.

This study also underscores the pressing need for a just and lasting resolution based on

international law of the Question of Palestine in all its aspects. It highlights the imperative of

upholding the principles of international law, including respect for human rights, self-

determination and the prohibition of the acquisition of territory by force. Such an understanding

is crucial for fostering a conducive environment that paves the way for the end of the Israeli

occupation and the realization of the inalienable rights of the Palestinian people.

Moreover, the timely nature of this study cannot be overlooked at a time when Israel is

deepening its colonization and creeping annexation of the Occupied Palestinian Territory. In a

rapidly evolving global landscape, where geopolitical dynamics continue to shape the debate

on the Question of Palestine, the study offers a frame of reference to anchor policymakers,

diplomats, international organizations and civil society actors on a comprehensive and

authoritative legal analysis enabling informed decision-making, advocacy and the pursuit of

justice.

I extend my heartfelt gratitude to the Irish Human Rights Centre of the National University of

Ireland Galway for their unwavering commitment and for the rigorous research that underpins

this study.

Finally, I recommend this study to all those dedicated to the realization of a just and lasting

peace in the Middle East. It is my hope that the findings and insights presented herein will

serve as a catalyst for informed dialogue, effective advocacy and meaningful actions towards

a future where the rights and aspirations of both Palestinians and Israelis are realized with full

respect for the rule of law.

Ambassador Cheikh Niang

Chair, United Nations Committee on the Exercise of the Inalienable Rights of the

Palestinian People and Permanent Representative of Senegal to the United Nations

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Executive Summary

Part I

This study examines two central questions. First, it asks whether Israel’s de facto and de jure

annexation measures, continued settlement and protracted occupation of the Palestinian

territory – the West Bank, including East Jerusalem, and the Gaza Strip – render the occupation

illegal under international law. Second, the study examines the question raised by the

implications arising from a finding of illegal occupation. If an occupation can become illegal,

what would be the legal consequences that arise for all States and the United Nations,

considering, inter alia, the rules and principles of international law, including, but not limited

to, the Charter of the United Nations; the Fourth Geneva Convention; international human

rights law; relevant Security Council, General Assembly and Human Rights Council

resolutions; and the advisory opinion of the International Court of Justice of 9 July 2004?

The study establishes that there are two clear grounds in international law establishing when a

belligerent occupation may be categorized as illegal. First, where a belligerent occupation

follows from a prohibited use of force amounting to an act of aggression, such occupation is

illegal ab initio. Second, where a belligerent occupation follows from a permitted use of force

in self-defence under Article 51 of the Charter of the United Nations but is subsequently carried

out ultra vires the principles and rules of international humanitarian law and in breach of

peremptory norms of international law, the conduct of the occupation may amount to an

unnecessary and disproportionate use of force in self-defence. The study examines Israel’s

breaches of peremptory norms of international law, the prohibition of the acquisition of

territory through force, the right to self-determination, and the prohibition on racial

discrimination and apartheid, as indicative of an occupation being administered in breach of

the principles of necessity and proportionality for a use of force in self-defence.

Part II – The nature of belligerent occupation

Part II of the study provides a thematic introduction to the legal nature of belligerent occupation

and the divergent approach of Israel to the occupation of Palestine. In doing so, it broadly

examines the principles underpinning the laws governing belligerent occupation, presents the

theory of belligerent occupation as illegal under the jus bello, and highlights international

practice and jurisprudence classifying belligerent occupations as illegal under the jus ad

bellum. Further, the study introduces the central tenets of Israel’s official policies and positions

on the nature of the belligerent occupation of Palestine, its settlement enterprise and its

annexation of Palestinian territory.

The laws governing belligerent occupation establish a number of important principles,

including the temporary or de facto nature of occupation enshrined in Article 42 of the Hague

Regulations (1907), which finds that “[t]erritory is considered occupied when it is actually

placed under the authority of the hostile army”. As such, although governmental authority may

be “temporarily disrupted or territorially restricted” during a belligerent occupation, the “State

remains the same international person”.

The occupying Power therefore does not acquire

sovereignty over the occupied territory,

but rather, is obliged to administer the territory

weighing the best interests of the occupied population with those of military necessity, under

Sir Robert Jennings, Arthur Watts, Oppenheim’s International Law, Volume I, Peace (9th edition, Longman,

London and New York) 204.

Ottoman Debt Arbitration, Borel Arbitration, 3 International Law Reports 1925–1926, (28 April 1925) Case

No. 360.

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the limitative conservationist principle.

Significantly, the present study highlights the

positions of leading authorities on international law which consider that the practice of

“prolonged occupation” has related to occupations of no more than four or five years in length,

such as Germany’s four-year occupation of Belgium during World War I,

or Germany’s five-

year occupation of Norway in World War II.

Former United Nations Special Rapporteur

Michael Lynk observes that modern occupations compliant with the principles of occupation

law “have not exceeded 10 years, including the American occupation of Japan, the Allied

occupation of western Germany and the American-led occupation of Iraq”.

That belligerent occupations may be considered illegal is not unique to Israel. For example, in

Case Concerning Armed Activities on the Territory of the Congo (2005), the International

Court of Justice held that Uganda’s occupation of Ituri “violated the principle of non-use of

force in international relations and the principle of non-intervention”.

Concomitantly, the

United Nations Security Council condemned Iraq’s “illegal occupation” of Kuwait,

and South

Africa’s “illegal administration” in Namibia.

The United Nations General Assembly,

meanwhile, called on Third States to not “recognize as lawful the situation resulting from the

occupation of the territories of the Republic of Azerbaijan”

and condemned Portugal for

“perpetuating its illegal occupation” of Guinea-Bissau.

Similarly, the United Nations

Commission on Human Rights denounced Vietnam’s “continuing illegal occupation of

Kampuchea”.

In 1977, the General Assembly expressed its deep concern “that the Arab

territories occupied since 1967 have continued, for more than ten years, to be under illegal

Israeli occupation and that the Palestinian people, after three decades, are still deprived of the

exercise of their inalienable national rights”.

Likewise, the preambles to successive United

Nations Economic and Social Council resolutions refer to the “severe impact of the ongoing

illegal Israeli occupation and all of its manifestations”.

Finally, section II concludes with a presentation of Israel’s policies and positions on the nature

of its administration of the Palestinian territory, the legality of settlements and its annexation

of Jerusalem. For instance, Israel’s Ministry of Foreign Affairs considers there to be

“competing claims” over the West Bank which “should be resolved in peace process

negotiations”, including the settlements.

However, Israel’s High Court of Justice, in Gaza

Coast Regional Council v Knesset of Israel, held that “the legal outlook of all Israel’s

Gregory H. Fox, “Transformative Occupation and the Unilateralist Impulse”, 885 International Review of the

Red Cross, (March 2012) 237.

Shwenk Edmund H., “Legislative Power of the Military Occupant under Article 43 Hague Regulations”, 54(2)

Yale Law Journal (1944–1945) 393–416, 399.

Norway Supreme Court, A. v. Oslo Sparebank (The Crown Intervening) (January 14, 1956) International Law

Reports Year, 1956, p. 791.

Michael Lynk, “Prolonged Occupation or Illegal Occupant?” (EJILTalk, 16 May 2018).

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports 168 (19 December 2005),

para. 345, p. 280.

United Nations Security Council resolution 674 (29 October 1990), para. 8.

United Nations Security Council resolution 435 (1978), para. 2; United Nations Security Council resolution

276 (1970).

United Nations General Assembly resolution 62/243 (25 April 2008) para. 5.

United Nations General Assembly resolution 3061 (XXVIII), para. 2.

United Nations Commission on Human Rights, Situation in Kampuchea (27 February

1985) E/CN.4/RES/1985/12, para. 3.

United Nations General Assembly resolution 32/20 (1977), preamble; See also United Nations General

Assembly resolution 3414 (XXX) (5 December 1975), para. 1.

United Nations Economic and Social Council, E/RES/2010/6 (20 July 2010); United Nations Economic and

Social Council, E/RES/2013/17 (9 October 2013); United Nations Economic and Social Council,

E/RES/2015/13, 19 August 2015; United Nations Economic and Social Council, E/RES/2016/4, 22 July 2016.

Ministry of Foreign Affairs, Israeli Settlements and International Law (30 November 2015).

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governments” is that the “areas are held by Israel by way of belligerent occupation”.

Nevertheless, Israel does not apply the Fourth Geneva Convention (1949) to the occupied

territory as it has not been transposed into its domestic law; also, politically, Israel disputes the

application of the Convention premised on its theory of the “missing sovereign”. Meanwhile,

Israel considers occupied Jerusalem “the eternal undivided capital of Israel”

and explains that

Jerusalem was “reunified” in 1967 “as a result of the six-day war launched against Israel by

the Arab world”.

Part III – Legality of the occupation

Part III presents two separate grounds under the jus ad bellum where a belligerent occupation

may be considered illegal, whether from the outset or beginning at some subsequent point in

the occupation. First, an occupation arising from an act of aggression is illegal ab initio. Article

2(4) of the United Nations Charter requires that “[a]ll Members shall refrain in their

international relations from the threat or use of force against the territorial integrity or political

independence of any State, or in any other manner inconsistent with the purposes of the United

Nations”. Criminal liability may arise for aggressive acts of occupation; for example, the

International Military Tribunal at Nuremberg considered Austria to be “occupied pursuant to a

common plan of aggression”.

Second, a belligerent occupation may be conducted in a manner that amounts to an unnecessary

and disproportionate use of force in self-defence.

Here the caselaw of the International Court

of Justice provides useful guidance on proportionality. For example, in Nicaragua, the

International Court of Justice considered, “the reaction of the United States in the context of

what it regarded as self-defence was continued long after the period in which any presumed

armed attack by Nicaragua could reasonably be contemplated”.

Further, in Nuclear Weapons

the International Court of Justice suggested that a use of force should meet “in particular the

principles and rules of humanitarian law” to be a lawful use of force in self-defence.

This

study suggests that the occupying Power’s breach of the principles and rules of international

humanitarian law and peremptory norms of international law provide a strong indicator that a

use of force is disproportionate. Such breaches include de facto and de jure annexations of

territory, illegal acquisition of territory through use of force, the denial of the right of self-

determination, and the administration of the occupied territory in breach of the prohibition of

racial discrimination and apartheid.

Having established the two grounds for illegal occupation under the jus ad bellum, the study

proceeds to examine, as a separate and subsequent ground of illegality, the occupying Power’s

breach of the external right of self-determination of Palestine as Mandate territory. Article 1(2)

of the United Nations Charter provides for the right of self-determination of peoples, a jus

HCJ 1661/05 Gaza Coast Regional Council v Knesset of Israel (9 June 2005) para. 3.

Amarachi Orie, “Australia Reverses Decision to Recognise West Jerusalem as Israel’s Capital”, Sky News, 25

October 2022.

Ministry of Foreign Affairs, Israeli Settlements and International Law (30 November 2015).

International Military Tribunal at Nuremberg, Trial of Goring, von Schirach et al, 1946–49, 10 Law

Reports of the Trials of War Criminals (1946 – 1949), p. 533.

Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (CUP 1995) 99; Christine Gray,

International Law and the Use of Force (OUP 2008) 154–155.

International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v

United States of America) (Judgement, Merits) International Court of Justice Reports 1984, p. 213, para. 237.

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)

International Court of Justice Reports 1996, p. 245, para. 42.

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cogens norm of international law

which has obligations on States erga omnes.

The right of

self-determination has special resonance for Mandate territories, whose right of self-

determination is held internationally as a “sacred trust” until full independence. As such, the

colonial process can only be considered to be fully brought to a complete end once the right of

self-determination has been exercised by the inhabitants of the colony.

The South West Africa

advisory opinion provides the leading example of an illegal occupation of Mandate territory,

considered by the International Court of Justice to be illegal ab initio. However, whereas South

West Africa was mandated territory, held under occupation after the termination of the

Mandate, it can be distinguished from Palestine, which is mandated territory held under

belligerent occupation in the context of an international armed conflict. Nevertheless, if the

occupation is administered in a way that denies the exercise of the right of the people to external

self-determination and sovereignty, this may similarly be considered in breach of the “sacred

trust”. Depending on the circumstances giving rise to the breach of self-determination, the

occupation could be illegal either ab initio or at some point thereafter.

Part IV – Evidence to support a finding that the Israeli occupation has become illegal

Part IV provides the factual basis to support the finding that Israel’s occupation is illegal. The

study presents clear and compelling evidence that Israel attacked Egypt first, in an act of

aggression, making the consequent occupation illegal from the outset. At the Security Council

meeting on the subject in 1967, the argument of anticipatory self-defence was rejected as

inconsistent with the United Nations Charter.

Israel premised its self-defence arguments on

two grounds: first, that Egypt’s blockade of the Strait of Tiran amounted to an act of aggression;

and second, that its actions were in response to cross-border attacks by Egyptian armoured

columns. However, Egypt’s blockade of the Strait of Tiran was essentially an Egyptian

blockade on its own sea in response to a threatened attack from Israel, as distinct from “the

blockade of the ports or coasts” of Israel.

As Schwarzenberger notes, “Article 51 of the

Charter permits preparation for self-defence”.

The preparatory measures taken by a State in

consideration of self-defence include special precautionary measures in its territorial waters.

Nonetheless, Israel’s Ministry of Foreign Affairs openly published that it pre-emptively

attacked Egypt, stating, “Israel pre-empted the inevitable attack, striking Egypt’s air force

while its planes were still on the ground”.

Given the prohibition on pre-emptive strikes,

Israel’s attack on Egypt may amount to an unlawful use of force, rendering the subsequent

occupation illegal.

The study further examines Israel’s breach of three peremptory norms of international law as

indications that the belligerent occupation is being administered in a manner which breaches

UNHCR “Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial and

Alien Domination to Self-Determination, Study Prepared by Mr. Hector Gros Espiell, Special Rapporteur”, (20

June 1978) E/CN.4/Sub.2/405 (vol.I) para. 78.

International Court of Justice, East Timor (Portugal v. Australia), (Judgment) International Court of Justice

Reports 1995, p. 90, para. 29.

International Court of Justice, Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali)

(Judgment) International Court of Justice Reports 1986 p. 554, Separate Opinion of Judge Luchaire, p. 653.

United Nations General Assembly Official Records (29 June 1967) United Nations Doc. A/PV.1541, p. 7;

United Nations General Assembly Official Records (27 June 1967) United Nations Doc. A/PV.1538, p. 9.

Tom Ruys, “Armed Attack” and Article 51 of the United Nations Charter, Evolutions in Customary Law and

Practice (CUP 2010) 277.

Schwarzenberger, International Courts, Volume II, The Law of Armed Conflict (Stevens and Sons Limited

1968) 35.

International Court of Justice, Corfu Channel Case (United Kingdom v Albania) (Merits Judgment)

International Court of Justice Reports 1949 p. 4 (9 April 1949) p. 29.

Israel Ministry of Foreign Affairs, “1967: The Six-Day War and the Historic Reunification of Jerusalem”

(2013).

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the principles of necessity and proportionality for self-defence. First, the study establishes that

in 1967, Israel de jure annexed East Jerusalem with the adoption of the Municipalities

Ordinance (Amendment No. 6) Law, 5727-1967; then, in 1980, under its quasi-constitutional

“Basic Law: Jerusalem”, Israel made a constitutional claim to the City as the “the capital of

Israel”, thereby demonstrating an animus to acquire the territory permanently.

The study

further concludes that Israel has de facto annexed Area C of the West Bank. In 1967, the legal

adviser to Israel’s Ministry of Foreign Affairs, in a classified cable, conveyed the annexationist

reasons why Israel could not apply the Fourth Geneva Convention (1949): “we have to leave

all options regarding borders open, we must not acknowledge that our status in the administered

territories is simply that of an occupying power”.

For decades successive Israeli governments

have implemented master plans to settle the West Bank. By 1992, out of the 70,000 hectares

of Palestinian land in Area C, only 12 per cent remained for Palestinian development after

Israel appropriated it as “State land”.

At the same time, Israel radically altered the

demography of Area C, transferring in over 500,000 Israeli Jewish settlers

– an irreversible

measure with permanent consequences, and one indicative of sovereign expression.

Meanwhile Israel applies a number of its domestic laws directly to the West Bank, including

the Higher Education Law

and Administrative Affairs Court Law.

Second, Israel’s conduct in administering occupied Palestine, characterized by the prolonged

nature of the occupation and by its policies and plans of settlement construction, further evinces

a breach of the right of self-determination.

Taking the considerable length of Israel’s

belligerent occupation, now some 56 years on from Security Council resolution 242 (1967)

calling for its “withdrawal”, 45 years on from the Camp David accords ending the conflict with

Egypt, and 29 years on from the Jordan peace agreement, it is clear that the original alleged

threat prompting Israel’s use of force in pre-emptive self-defence has completely and

irrevocably ended. At the same time, Israel’s zoning of Palestinian immoveable property for

residential, agricultural, industrial and tourist settlements, nature and archaeological reserves,

and military firing zones, has seen the appropriation of over 100,000 hectares of private and

public Palestinian land and the demolition of over 50,000 Palestinian homes since 1967.

Israel’s alteration of facts on the ground, erasure of the Palestinian presence and interference

in the democratic process are carried out, it will be argued, to compromise Palestine’s viability

as an independent State, denying the collective right of the Palestinian people to self-

determination.

Third, there is currently a mounting body of recognition that Israel is carrying out

discriminatory apartheid policies and practices against Palestinians on both sides of the Green

Basic Law: Jerusalem, Capital of Israel, 34 Laws of the State of Israel 209 (1980).

“The Comay-Meron Cable Reveals Reasons for Israeli Position on Applicability of 4th Geneva Convention”

(Akevot, 20 March 1968).

United Nations Habitat, “Spatial Planning in Area C of the Israeli Occupied West Bank of the Palestinian

Territory Report of an International Advisory Board” (May 2015) 18.

Population – Statistical Abstract of Israel 2019 – No. 70, Population of Jews and Others by Natural Region

(2018); OCHA, “Under Threat: Demolition orders in Area C of the West Bank”; Claire Parker, “Jewish Settler

Population in West Bank Passes Half a Million” The Washington Post (2 February 2023).

Al-Haq, Establishing Guidelines to Determine whether the Legal Status of ‘Area C’ in the Occupied

Palestinian Territory represents Annexed Territory under International Law (2020) 47.

“Israel’s Creeping Annexation: Knesset Votes to Extend Israeli Law to Academic Institutions in the West

Bank”, Haaretz, 12 February 2018.

Naschitz Brandes Amir, “Administrative Law: The Jurisdiction of the Administrative Affairs Court is

Extended to Cover a Variety of Additional Matters” Lexology (4 March 2016)

International Criminal Court, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s

Territorial Jurisdiction in Palestine, No. ICC-01/18 (22 January 2022) para. 9.

Amnesty International, Israel’s Occupation: 50 Years of Dispossession, 2017.

HCJ 7803/06, Khalid Abu Arafeh, et al. v Minister of Interior (2006).

- 12 -

Line.

Notably, Israel confers rights on Israeli Jews and systematically discriminates against

Palestinians. The Land Acquisition Law, 5713-1953, for example, facilitates the alienation of

confiscated Palestinian lands to various Israeli State institutions, including the Development

Authority. Parastatal organizations, such as the Jewish Agency and the World Zionist

Organization, are chartered to carry out material discrimination, including through the

allocation of confiscated Palestinian lands to Israeli Jews.

At the same time, Israeli Jews can

pursue ownership claims to Palestinian residential properties in occupied East Jerusalem under

the Legal and Administrative Matters Law (1970).

The quest to engineer a Jewish majority

demographic and reduce and remove Palestinians has been advanced by successive

governments. Under Israel’s Law of Return (1950), “every Jew has the right to come to this

country as an oleh” and Israeli citizenship is “granted to every Jew who has expressed his desire

to settle in Israel”.

At the same time, some seven million Palestinian refugees are denied their

right of return, including 450,000 Palestinians displaced as refugees during the Naksa arising

from the 1967 Six Day War.

Such practices inter alia indicate that Israel is administering the

Occupied Palestinian Territory under a regime of systematic racial discrimination and

apartheid.

The section concludes that Israel’s breach of the prohibition on annexation, denial of the

exercise of the right of self-determination, and application of an apartheid regime in occupied

Palestine may together be indicative of a mala fide illegal administration of the occupied

territory, in breach of the principles of immediacy, necessity and proportionality for self-

defence. The study then examines the consequent effects of a mala fide occupation on the

exercise of the external right to self-determination of peoples. Because of Palestine’s status as

a former mandated territory, the international community continues to hold an international

obligation, as a “sacred trust” to the Palestinian people, “not to recognize any unilateral change

in the status of the territory”.

The idea that either occupied territories or former Mandate

territories would revert back to a colonial status was dispositively dispensed with in the South

West Africa advisory opinion. There, the International Court of Justice explained that “[t]o

accept the contention of the Government of South Africa on this point would have entailed the

reversion of mandated territories to colonial status, and the virtual replacement of the mandates

CERD/C/ISR/CO/17-19, Concluding Observations on the Combined Seventeenth to Nineteenth Reports of

Israel (27 January 2020) para. 23; UNHCR, “Israel’s 55-year Occupation of Palestinian Territory is Apartheid –

UN Human Rights Expert” (25 March 2022); Al-Haq et al., Israeli Apartheid: Tool of Zionist Settler

Colonialism (29 November 2022); Al Mezan, The Gaza Bantustan – Israeli Apartheid in the Gaza Strip (29

November 2021); Addameer and Harvard Human Rights Clinic, Joint Submission on Apartheid to the UN

Independent Commission of Inquiry on the Occupied Palestinian Territory and Israel (3 March 2022);

B’Tselem, A regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This is Apartheid

(12 January 2021); Human Rights Watch, A Threshold Crossed, Israeli Authorities and the Crimes of Apartheid

and Persecution (27 April 2021); Amnesty International, Israel’s Apartheid Against Palestinians A Look Into

Decades of Oppression and Domination (2022).

The Constitution of the World Zionist Organization and the Regulations for its Implementation (Updated

November 2019). Article 2 of the World Zionist Organization’s Constitution states that “the aim of Zionism is

to create for the Jewish people a home in Eretz Israel secured by public law”.

United Nations, “Amid International Inaction, Israel’s Systematic ‘Demographic Engineering’ Thwarting

Palestinians’ Ability to Pursue Justice, Speakers Tell International Conference East Jerusalem Crisis ‘Far from

Over’, Under-Secretary-General Says, Warning Threats to Status Quo in Holy City Can Have Severe Global

Repercussions” (1 July 2021).

Law of Return 5710-1950 (5 July 1950).

State of Palestine, “It Is Apartheid: The Reality of Israel’s Colonial Occupation of Palestine” (June 2021) 18.

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) Separate Opinion of Judge

Koroma, para. 7.

- 13 -

régime by annexation, so determinedly excluded in 1920.”

Importantly, the situation in

Palestine has been recognized as a case “concerning the right to self-determination of peoples

under colonial or alien domination” which has not yet been settled.

As such, Israel’s mala

fide occupation of the Palestinian territory, treating it as a “disputed territory” with a “missing

sovereign”, and replete with de jure and de facto annexations, demographic manipulation and

settlement enterprise, among other breaches, violates the continuing right of self-determination

and sovereignty of the Palestinian people as a Mandate territory.

Part V – Obligation to bring the illegal occupation to an end

The international law on State responsibility requires Israel to cease internationally wrongful

acts and to offer “appropriate assurances and guarantees of non-repetition”.

Significantly, the

International Court of Justice held that South Africa had an obligation to “withdraw its

administration from the Territory of Namibia”, and similarly, encouraged in Chagos that the

British administration of the Chagos Archipelago end “as rapidly as possible”.

For Palestine,

appropriate restitution may thus take the form of the release of Palestinian political prisoners;

the returning of properties, including cultural property seized by the occupying authorities; the

dismantlement of unlawful Israeli settlements in the occupied West Bank and East Jerusalem;

the lifting of the blockade of the Gaza Strip; the dismantling of the institutionalized regime of

discriminatory apartheid laws, policies and practices; and the dismantling of the occupying

administration. Given Israel’s non-implementation of the prior advisory opinion on the

construction of the Annexation Wall, assurances and guarantees of non-repetition may be an

insufficient remedy.

It might also be necessary to establish a neutral arbitral claims

commission to examine mass claims arising from the consequences of the occupying Power’s

violations.

Notably, a 2019 study by the United Nations Conference on Trade and

Development concluded that the cumulative fiscal costs to the Palestinian economy from

Israel’s occupation in the period 2000–2019 is an estimated USD $58 billion. In the Gaza Strip,

the economic costs of occupation in the period 2007–2018 were estimated at USD $16.7

billion.

Exploitation and prevented development of natural resources has cost the Palestinian

economy USD $7.162 billion over 18 years in gas revenues from the Gaza Marine and USD

$67.9 billion in oil revenues from the Meged oil field at Rantis.

Overall, since 1948, the losses

to Palestine are estimated to exceed USD $300 billion.

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 21.

Hector Gros Espiell, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and

Protection of Minorities, “The Right to Self-Determination Implementation of United Nations Resolutions”

(1980) 48–51.

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 30(a) and (b).

International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from

Mauritius in 1965 (Advisory Opinion) International Court of Justice Reports 2019 p. 25 (25 February 2019)

para. 178.

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) p. 136.

For example, the peace treaty signed between Ethiopia and Eritrea on 12 December 2000, which provided for

the establishment of a neutral arbitral Claims Commission.

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: The Impoverishment of Gaza under Blockade” (2020) p. 34.

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: The Unrealized Oil and Natural Gas Potential” (2019) p. 15, 25.

Ibid.

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The study outlines that there are international consequences for Israel’s illegal occupation and

its breaches of peremptory norms of international law,

and Third States and the international

community are obliged to bring the unlawful administration of occupied territory to an end. In

doing so, this study underscores the requirements for the full de-occupation and decolonization

of the Palestinian territory, starting with the immediate, unconditional and total withdrawal of

Israeli occupying forces and the dismantling of the military administration. Critically,

withdrawal, as the termination of an internationally wrongful act, cannot be made the subject

of negotiation. Full sanctions and countermeasures, including economic restrictions, arms

embargoes and the cutting of diplomatic and consular relations, should be implemented

immediately, as an erga omnes response of Third States and the international community to

Israel’s serious violations of peremptory norms of international law. The international

community must take immediate steps towards the realization of the collective rights of the

Palestinian people, including refugees and exiles in the diaspora, starting with a plebiscite

convened under United Nations supervision, to undertake the completion of decolonization.

Notably, Security Council resolution 2334 (2016) urged, without delay, international and

diplomatic efforts to put an “end to the Israeli occupation that began in 1967”. However, such

diplomatic efforts since the 1990s appear to be premised on a dubious “land for peace” formula,

which, if used to deprive the protected Palestinian population of their inalienable rights to self-

determination and permanent sovereignty over national resources, would also constitute an

internationally wrongful act. As such, the obligation for State withdrawal from illegally

occupied territory is unqualified, immediate and absolute. General Assembly resolutions

include important qualifications for Israel’s “unconditional and total withdrawal”, meaning that

withdrawal is not to be made the subject of negotiation, but is rather the termination of an

internationally wrongful act.

Conclusion

The most prescient road map for the de-occupation and decolonization of the Palestinian

territory comes in the form of the rich tapestry of Third State and international

recommendations advanced in the Chagos and Namibia cases. It is also clear that the general

law on State responsibility for grave violations of peremptory norms of international law can

draw from the resolutions of the Security Council “as a general idea applicable to all

situations created by serious breaches”, including the prohibition of aid or assistance in

maintaining the illegal regime.

Naturally, the most appropriate forum for examining the

legality of the occupation is the International Court of Justice. Whether the occupation is

illegal ab initio or becomes illegal, the consequences should be the immediate, unconditional

and total withdrawal of Israel’s military forces; the withdrawal of colonial settlers; and the

dismantling of the military administrative regime, with clear instructions that withdrawal for

breach of an internationally wrongful act is not subject to negotiation. Full and commensurate

reparations should be accorded to the affected Palestinian individuals, corporations and

entities for the generational harm caused by Israel’s land and property appropriations, house

demolitions, pillage of natural resources, denial of return, and other war crimes and crimes

against humanity orchestrated for the colonialist, annexationist aims of an illegal occupant.

Rosalyn Higgins, “The Place of International Law in the Settlement of Disputes by the Security Council”, 64

AM. J. INT’L L. 1, (1970) 8; Gabriella Blum, “The Fog of Victory” 24 Eur. J. Int’l L. (2012) 391; Omar Dajani,

“Symposium on Revisiting Israel’s Settlements: Israel’s Creeping Annexation”, 111 American Journal of

International Law (2017) 52; Salvatore Fabio Nicolosi, “The Law of Military Occupation and the Role of De

Jure and De Facto Sovereignty” XXXI Polish Yearbook of International Law (2011).

United Nations Security Council resolution 1284 (1999), p. 115, para. 12.

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I. Introduction

A. Outline

This study examines two central questions. The first is whether Israel’s de facto and de jure

annexation measures, continued settlement and protracted occupation of the Palestinian

territory – the West Bank, including East Jerusalem, and the Gaza Strip – render the occupation

illegal under international law. Second, the study examines the question raised by a finding of

illegal occupation. If an occupation can become illegal, what would be the legal consequences

that arise for all States and the United Nations, considering, inter alia, the rules and principles

of international law, including, but not limited to, the United Nations Charter; the Fourth

Geneva Convention; international human rights law; relevant Security Council, General

Assembly and Human Rights Council resolutions; and the advisory opinion of the International

Court of Justice of 9 July 2004?

Although the establishment of a belligerent occupation operates as a question of fact, the

rationale behind the de facto nature of belligerent occupation was to prevent the disinterested

or malevolent occupying Power from reneging on their obligations towards the occupied

population.

For these purposes, international humanitarian law norms continue to bind the

occupying Power regardless of the legality of the occupation. However, Giladi observes that

“regulating situations of occupation is as much a jus ad bellum exercise as it is one of jus in

bello”.

Jus ad bellum refers to “conditions under which States may resort to war or to the use

of armed force in general” while jus in bello refers to the law regulating the conduct of parties

engaged in an armed conflict, primarily international humanitarian law.

Accordingly, this

study establishes that there are two clear grounds in international law establishing when a

belligerent occupation may be categorized as illegal. First, where a belligerent occupation

follows from a prohibited use of force amounting to an act of aggression, such occupation is

illegal from the outset. Second, where a belligerent occupation follows from a permitted use of

force in self-defence under Article 51 of the United Nations Charter, but subsequently breaches

the principles of necessity and proportionality, the resulting occupation may become illegal.

This study foregrounds its analysis on the illegality of the belligerent occupation primarily on

Israel’s breach of the law governing the use of force as an act of aggression. There is persuasive

documentary evidence to indicate that Israel’s initial invasion of Egypt in 1967 constituted a

pre-emptive armed attack against the Egyptian blockade and therefore an unlawful use of

force.

Even assuming arguendo that Israel’s use of force was a legitimate act of self-defence

in response to an armed attack, Israel’s continued belligerent occupation of the Palestinian

territory for almost 56 years – decades after it concluded peace agreements with Egypt and

Jordan, key parties to the conflict, and after multiple Security Council calls for it to end – makes

it clear that the belligerent occupation has exceeded the parameters of military necessity and

proportionality for a legitimate act of self-defence. The study demonstrates that Israel is

carrying out an indefinite belligerent occupation, with annexationist intent, in violation of the

exercise of the Palestinian people’s right to self-determination and permanent sovereignty over

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports 2005 (19 December 2005)

Separate Opinion of Judge Kooijmans, para. 62; Doris Appel Graber, The Development of the Law of Belligerent

Occupation (Columbia University Press 1949) 40.

Rotem Giladi “The Jus ad Bellum/Jus in Bello Distinction and the Law of Occupation” Israel Law Review

vol. 41 (2008) 249.

ICRC, “What are Jus ad Bellum and Jus in Bello?” (22 January 2015).

John Quigley, “Israel’s Unlawful 1967 Occupation of Palestine”, in Prolonged Occupation and International

Law: Israel and Palestine, Nada Kiswanson and Susan Power, eds. (BRILL Nijhoff 2023) 13–31.

- 16 -

national resources. In doing so, this research broadly examines Israel’s breach of the principles

and rules of international humanitarian law, and in particular, the breach of three peremptory

norms: (1) the right to self-determination; (2) the prohibition on the acquisition of territory by

use of force; and (3) the prohibition of racial discrimination and apartheid, as particularly

compelling indicators that Israel is occupying the Palestinian territory in breach of the

principles of immediacy, necessity and proportionality, rendering the belligerent occupation an

unlawful use of force in self-defence.

Having established that Israel’s pre-emptive use of force against Egypt amounted to an act of

aggression, and dispelling Israel’s arguments of self-defence, the study examines the particular

consequences of the occupation and its breach of the external right of self-determination of the

Palestinian people. It is clearly articulated in the South West Africa advisory opinion that the

continued occupation of Mandate territory after the termination of the Mandate is illegal ab

initio.

Nevertheless, the study draws a distinction between the administration of Namibia by

South Africa – which had previously been the Mandatory Power and was acting ultra vires

international resolutions terminating the Mandate – and the case of Palestine, a Mandate

territory which is the subject of an international armed conflict and subsequent belligerent

occupation.

As a “sacred trust” with particular international consequences, Israel’s continued

administration of occupied Palestine, as a mala fide illegal occupant, breaches the exercise of

the right of the Palestinian people to external self-determination.

The study demonstrates that there are international consequences for Israel’s illegal occupation

and its breaches of peremptory norms of international law,

and that Third States and the

international community are obliged to bring the unlawful administration of occupied territory

to an end. In doing so, this study underscores the requirements for the full de-occupation and

decolonization of the Palestinian territory, starting with the immediate, unconditional and total

withdrawal of Israeli occupying forces and the dismantling of the military administration.

Critically, withdrawal, as the termination of an internationally wrongful act, cannot be made

the subject of negotiation. Full sanctions and countermeasures, including economic

restrictions, arms embargoes and the cutting of diplomatic and consular relations, should be

implemented immediately, as an erga omnes (towards all) response of Third States and the

international community to Israel’s serious violations of peremptory norms of international

law. The international community must take immediate steps towards the realization of the

collective rights of the Palestinian people, including refugees and exiles in the diaspora, starting

with a plebiscite convened under United Nations supervision, to undertake the completion of

decolonization.

B. Methodology

The study takes it as a starting point that the Palestinian territory – i.e., the West Bank,

including East Jerusalem, and the Gaza Strip – was occupied by Israel in 1967, in the course

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 54, paras. 118–119.

Ralph Wilde, “Using the Master’s Tools to Dismantle the Master’s House: International Law and Palestinian

Liberation” Palestine Yearbook of International Law vol. 22 (2019–2020) p. 50.

Rosalyn Higgins, “The Place of International Law in the Settlement of Disputes by the Security Council”,

AM. J. INT’L L. 1, vol. 64 (1970) p. 8; Gabriella Blum, “The Fog of Victory” Eur. J. Int’l L. vol. 24 (2012) p.

391; Omar Dajani, “Symposium on Revisiting Israel’s Settlements: Israel’s Creeping Annexation”, American

Journal of International Law vol. 111 (2017) p. 52; Salvatore Fabio Nicolosi, “The Law of Military Occupation

and the Role of De Jure and De Facto Sovereignty” XXXI Polish Yearbook of International Law (2011).

- 17 -

of an international armed conflict. That the territory is under belligerent occupation is

recognized by the International Court of Justice in the Wall advisory opinion:

The territories situated between the Green Line… and the former eastern boundary of

Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict

between Israel and Jordan. Under customary international law, these were therefore

occupied territories in which Israel had the status of occupying Power. Subsequent

events in these territories… have done nothing to alter this situation. All these territories

(including East Jerusalem) remain occupied territories and Israel has continued to have

the status of occupying Power.

The study also takes it as a starting point that Israel continues to occupy the Gaza Strip.

While

recognizing that Israel is administering the territory occupied in 1967 as an occupying Power

under the laws of armed conflict, the study also makes reference to territory held under Israeli

control beyond the occupied territory acquired in the 1948–49 conflict. This territory includes

both the effectively annexed West Jerusalem

and the territory demarcated for a Palestinian

State under General Assembly resolution 181,

territory which at a minimum continues to be

held as a “sacred trust” for the Palestinian people.

The study undertakes a comparative analysis of the legal consequences of a number of

occupations where the Security Council, the General Assembly and the International Court of

Justice have pronounced on the illegality of the occupation. This includes South Africa’s

occupation of Angola, Iraq’s occupation of Kuwait, Armenia’s occupation of Azerbaijan,

Uganda’s occupation of Ituri in the Democratic Republic of Congo, Vietnam’s occupation of

Democratic Kampuchea, South Africa’s occupation of Namibia, and Portugal’s occupation of

Guinea-Bissau. Drawing from these case studies, the study concludes with an outline of the

requirements for the de-occupation and decolonization of occupied Palestine.

The research draws from the leading international law scholars on the subject of belligerent

occupation, broadly analysing the discourse on illegality under three central legal arguments.

The first argument provides that belligerent occupations may become illegal premised on

breaches of peremptory norms of international law.

A second school of thought suggests that

the ooccupying Power’s breach of the principles of occupation law in bello taint the occupation

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 78.

ICRC, “What Does the Law Say About the Responsibilities of the occupying Power in the Occupied

Palestinian Territory?” (28 March 2023). “The ICRC considers Gaza to remain occupied territory on the basis

that Israel still exercises key elements of authority over the Strip, including over its borders (airspace, sea and

land – at the exception of the border with Egypt). Even though Israel no longer maintains a permanent presence

inside the Gaza Strip, it continues to be bound by certain obligations under the law of occupation that are

commensurate with the degree to which it exercises control over it.”

“Jerusalem Declared Israel-Occupied City – Government Proclamation”, Israeli Ministry of Foreign Affairs

(12 August 1948).

United Nations General Assembly resolution 181 (1947), part III.

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 31.

Eyal Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical

Perspective” IDF L Rev vol. 1(19) (2003) p. 24; UNHCR “Report of the Special Rapporteur on the situation of

human rights in the Palestinian territories occupied since 1967, Michael Lynk” (23 October 2017) A/72/43106,

paras. 27–37; Ardi Imesis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of

Palestine, 1967–2020” EJIL vol. 31 (2020) p. 1055.

- 18 -

with illegality.

And a third line of arguments posits that an occupation following from an

unlawful use of force, in breach of the jus ad bellum, is illegal, or may become illegal should

the occupation follow from an act of self-defence that later violates the principles of necessity

and proportionality.

The study provides a substantive overview of the principles governing

belligerent occupation. It provides a rationale for proceeding with use-of-force arguments,

while taking Israel’s violation of the principles underpinning occupation, along with its breach

of peremptory norms of international law in administering the occupied territory, as evidence

that the continuing unnecessary use of force is disproportionate to its original aim.

II. The nature of belligerent occupation

A. Principles governing belligerent occupation

This section provides a brief introduction to the jus in bello nature of belligerent occupation

and examines the principles underpinning a belligerent occupation with reference to the Hague

Regulations (1907), the Fourth Geneva Convention (1949), Additional Protocol 1 (1977), and

customary and general principles of international law. The laws governing belligerent

occupation establish a number of important principles, including the temporary or de facto

nature of the occupation and the proviso that the occupying Power as temporary administrator

does not have sovereignty: i.e., that the territory is administered in the best interests of the

occupied population and follows the conservationist principle as much as possible while

ensuring the legitimate security interests of the occupying Power.

It is important to examine

each of these principles more extensively, as many distinguished authors argue that Israel’s

breach of the core principles constitutes an illegal occupation jus in bello. This research

suggests that some of the breaches of the jus in bello principles reflect violations of peremptory

Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, “Illegal Occupation: Framing the Occupied

Palestinian Territory” 23 Berkeley J. Int’l L. (2005) 551, 600; David Hughes, “Framing Prolonged Occupation”

(Opinio Juris, 18 June 2021); Ronen, “Illegal Occupation and Its Consequences” Israel Law Review vol. 41

(ILR) (2008) p. 201.

Enzo Cannizzaro, “Contextualizing Proportionality: Jus ad Bellum and Jus in Bello in the Lebanese War” 88

Int’l Rev. Red Cross (2006) 779; Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (CUP

1995) 99; Christine Gray, International Law and the Use of Force (OUP 2008); Vaios Koutroulis, “The

Application of International Humanitarian Law and International Human Rights Law in Situation of Prolonged

Occupation: Only a Matter of Time?” 885 Int’l Rev. Red Cross (March 2012); David Hughes, “Of Tactics,

Illegal Occupation and the Boundaries of Legal Capability: A Reply to Ardi Imseis” 31(3) European Journal of

International Law (August 2020) 1087; Ralph Wilde, “Using the Master’s Tools to Dismantle the Master’s

House: International Law and Palestinian Liberation” Palestine Yearbook of International Law vol. 22 (2019–

2020); Ralph Wilde, “Is the Israeli occupation of the Palestinian West Bank (including East Jerusalem) and

Gaza ‘Legal’ or ‘Illegal’ in International Law?” University College London (29 November 2022); Vito

Todeschini, “Out of Time: On the (Il)legality of Israel’s Prolonged Occupation of the West Bank” in Prolonged

Occupation and International Law Israel and Palestine, Nada Kiswanson and Susan Power, eds. (Brill 2023);

Valentina Azarova, “Israel’s Unlawfully Prolonged Occupation: Consequences Under An Integrated Legal

Framework” European Council on Foreign Relations (June 2017) p. 7; Valentina Azarova, “Business and

Human Rights in Occupied Territory: The United Nations Database of Businesses Involved in Israel’s

Settlements in Occupied Palestinian Territory” Business and Human Rights Journal vol. 3(2) (2018) pp. 1–23;

Valentina Azarova, “Illegal Territorial Regimes: On the Operation of International Law in Crimea”, in The Use

of Force against Ukraine and International Law, Sergey Sayapin and Evhen Tsybulenko, eds. (TMC Asser

Press 2018).

Valentina Azarova, “Towards a Counter-Hegemonic Law of Occupation: On the Regulation of Predatory

Interstate Acts in Contemporary International Law” Yearbook of International Humanitarian Law vol. 20

(2017) p. 113–160.

Stephen Schwebel, “What Weight to Conquest?” AM. J. INT’L L. vol. 64 (1970) p. 344.

Ardi Imseis, “Critical Reflections on the International Humanitarian Law Aspects of the International Court

of Justice Wall Advisory Opinion” AJIL vol. 99 (2005) pp. 102, 109–110, 112.

- 19 -

norms of international law, and therefore offer particularly compelling evidence of violations

of the principles of necessity and proportionality when considering occupation as a continuing

use of force jus ad bellum. While the study focuses primarily on the violation of peremptory

norms of international law as exemplifying inexorable breaches of self-defence, it must be

noted that both the breach of general principles underlying the occupation and the violations

of international humanitarian law, including grave breaches of the Geneva Conventions, may

similarly be indicative of a breach of the principles of necessity and proportionality for self-

defence.

1. De facto nature of belligerent occupation

Belligerent occupation is de facto in nature, meaning that it operates as a question of fact. This

is more articulately reflected in Article 1 of the Lieber code of 1863, which provides, “Martial

Law is the immediate and direct effect and consequence of occupation or conquest. The

presence of a hostile army proclaims its Martial Law”.

The de facto nature of belligerent

occupation is mirrored in the Hague Regulations, which provides that “[t]erritory is considered

occupied when it is actually placed under the authority of the hostile army. The occupation

applies only to the territory where such authority is established, and in a position to assert

itself”.

As expressed by the Italian Supreme Military Tribunal in Re Lepore (1946), “the form

and the origin of the presence of armed forces of one State in the territory of another, with

which it is at war, must be treated as irrelevant”.

As such an invasion is “usually of a

transitionary nature and constitutes in most cases the preliminary basis for an occupation”.

Armed Activities in the Democratic Republic of Congo, the International Court of Justice

explained that once the armed forces have established and exercised authority, and regardless

of whether there is a “structured military administration” of the territory, then “any justification

given” by the occupying Power “for its occupation would be of no relevance”.

Nevertheless,

this does not rule out a characterization of illegality jus ad bellum.

Article 2 of the Fourth Geneva Convention (1949) states the general rule that “[t]he Convention

shall also apply to all cases of partial or total occupation of the territory of a High Contracting

Party, even if the said occupation meets with no armed resistance”.

Notably, the International

Committee of the Red Cross (ICRC) Commentary to the Fourth Geneva Convention explains

that the word “occupation” has a wider meaning than it has in Article 42 of the Hague

Regulations, and for individuals concerned, the application of the Fourth Geneva Convention

does not necessarily “depend upon the existence of a state of occupation”.

For example, there

is no intermediate period between the invasion and the establishment of the occupation. Instead,

Instructions for the Government of Armies of the United States in the Field (Lieber Code) (24 April 1863),

art. 1.

Hague Regulations (1907), art. 42.

Italy Supreme Military Tribunal, Re Lepore, 13 International Law Reports 146, 1946, Case Number 146.

Ibid.

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports 2005 (19 December 2005)

para. 173.

Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287,

art. 2. See also Article 1 of the Fourth Geneva Convention which requires that “the High Contracting Parties

undertake to respect and to ensure respect for the present Convention in all circumstances”.

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (ICRC 1958) 60. See also Reports of International Arbitral

Awards, Eritrea-Ethiopia Claims Commission – Partial Award: Western Front, Aerial Bombardment and

Related Claims – Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26, volume XXVI, 19 December 2005, p. 291–

349, para. 27.

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the Convention applies to the relations between “the civilian population of a territory and troops

advancing into that territory, whether fighting or not”.

2. Temporary nature of belligerent occupation

Starting from the precursor Lieber Code, Brussels Declaration and Oxford Code, the temporary

nature of belligerent occupation is a core principle.

From the outset, Article 3 of the Lieber

Code, which even in 1863 constituted a codification of existing practice at the time,

provides

for a temporary administration under military rule, as long as military necessity requires.

This

temporary arrangement is reflected in Article 2 of the Brussels Declaration, which refers to

“[t]he authority of the legitimate Power being suspended and having in fact passed into the

hands of the occupants”. The Swedish delegate to the Brussels Conference, Baron Jomini,

explained that “the occupation lasts so long as it (‘tant qu’elle’) is exercised by fact”, and that

the temporal aspect was as such implicit in the revised text.

Furthermore, Article 41 of the

Oxford Declaration regards territory as occupied when “the State to which it belongs has

ceased, in fact, to exercise its ordinary authority”, the occupation continuing for the duration

this state of affairs exists.

Article 43 of the Hague Regulations follows with what has been

described as a “mini constitution” of the regime governing the occupying Power’s

administration, outlining that “[t]he authority of the legitimate power having in fact passed into

the hands of the occupant, the latter shall take all the measures in his power to restore, and

ensure, as far as possible, public order and safety, while respecting, unless absolutely

prevented, the laws in force in the country”.

Although governmental authority may be

“temporarily disrupted or territorially restricted” during a belligerent occupation, the “State

remains the same international person”.

In particular, Article 6 of the Fourth Geneva Convention provides for a one-year rule, which

limits the breadth of applicable articles of the Fourth Geneva Convention in respect of

occupations lasting more than one year after the general close of military operations. At the

Stockholm Conference preparatory to the drafting of the Geneva Conventions, delegates

considered that “if the occupation were to continue for a very long time after the general

cessation of hostilities, a time would doubtless come when the application of the Convention

was no longer justified, especially if most of the governmental and administrative duties carried

out at one time by the occupying Power had been handed over to the authorities of the occupied

territory”.

The International Court of Justice, in Legal Consequences of the Construction of

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (ICRC 1958) p. 60.

Doris Appel Graber, The Development of the Law of Belligerent Occupation (Columbia University Press

1949) p. 37.

International Committee of the Red Cross, Instructions for the Government of Armies of the United States in

the Field (Lieber Code) (24 April 1863).

Instructions for the Government of Armies of the United States in the Field (24 April 1863) art. 3.

Cited in Yutaka Arai-Takahashi, “Unearthing the Problematic Terrain of Prolonged Occupation” Israel Law

Review vol. 52(2) (2019) pp. 125, 142.

The Laws of War on Land (Oxford) (9 September 1880) art. 41.

Hague Regulations (1907) art. 43; Eyal Benvenisti, The International Law of Occupation (OUP 2012) p. 69.

Sir Robert Jennings, Arthur Watts, Oppenheim’s International Law, volume I, Peace (9

edition, Longman,

London and New York) p. 204. The temporary nature of occupation is also underscored by numerous provisions

of the Hague and Geneva Conventions preventing substantial alteration of the legal system and territory of the

occupied State, including Articles 43, 55, Hague Regulations (1907), Article 47, 49 and 64, Fourth Geneva

Convention (1949), Articles 7, 8, 47, Fourth Geneva Convention (1949); Poland, Supreme Court, First Division,

Wlodzimierz (City of) v Polish Treasury, 6 International Law Reports, 1931–1932, Case No 233.

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (ICRC 1958), Commentary, art. 6; The Soviet Delegation who

- 21 -

a Wall in the Occupied Palestinian Territory (Advisory Opinion) (hereafter Wall), considered

that “[s]ince the military operations leading to the occupation of the West Bank in 1967 ended

a long time ago, only those Articles of the Fourth Geneva Convention referred to in Article 6,

paragraph 3, remain applicable in that occupied territory”.

This problematic interpretation of

Article 6 has been criticized for its textual misreading of the one-year rule. The one-year rule

specifically reduces the full application of the Fourth Geneva Convention “one year after the

general close of military operations”, rather than on the close of “military operations leading

up to the occupation”, as the International Court of Justice incorrectly suggests.

Nonetheless, this rule has been largely complemented by Article 3(b) of Additional Protocol I,

establishing that “the application of the Conventions and of this Protocol shall cease, in the

territory of Parties to the conflict, on the general close of military operations and, in the case

of occupied territories, on the termination of the occupation”.

The ICRC, speaking in an

expert meeting, explained that “[t]his ‘one year after’ rule is widely seen as of little or no

relevance to actual occupations, and, as noted below, it has been effectively rescinded by a

provision of Additional Protocol I of 1977, as between States party to the latter”.

Although

Israel is not a party to Additional Protocol I, Aeyal Gross notes that the Israeli High Court of

Justice has “implemented provisions that would have been inapplicable in light of the language

of Article 6, which has arguable been overridden by Article 3(b) of API that enjoys customary

status”.

3. The contemporary practice of prolonged occupation

When the Hague Regulations were drafted, short-term occupations were the norm. Writing in

1894, Westlake suggests that the “sternest interpretation of the licence given by necessity”

operates to draw operations to a swift close.

In 1921, these sentiments were echoed by de

Watteville, who criticized belligerent occupations extending beyond four years as excessively

detrimental to the economy of the occupied territory.

Likewise, Leurquin proposed that

“[w]hen the occupation is prolonged and when owing to the war the economic and social

position of the occupied country underscores profound changes, it is perfectly evident that new

supported the inclusion of Article 6 (then draft Article 4) feared that an abrupt end of the Conventions

protections might automatically cease “when the last shot was fired”, leaving aliens who are nationals of an

enemy State in a precarious position. For the Soviet Delegation, “the close of hostilities obviously cannot and

does not signify the immediate resumption of normal relations”. Final Record of the Diplomatic Conference of

Geneva of 1949, volume 2, Section B, p. 387.

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 125.

Ardi Imseis, “Critical Reflections on the International Humanitarian Law Aspects of the International Court

of Justice Wall Advisory Opinion” AJIL vol. 99, pp. 102, 106; Aeyal Gross, The Writing on the Wall,

Rethinking the International Law of Occupation (CUP 2017) pp. 31–34; Yoram Dinstein, The International Law

of Belligerent Occupation (CUP 2019) p. 306.

Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims

of Non-International Armed Conflicts (8 June 1977) 1125 UNTS 610, art. 3(b); While Article 3(b) of Additional

Protocol I extends the protection of the Protocol on the termination of occupation “for those persons whose final

release, repatriation or re-establishment takes place thereafter. These persons shall continue to benefit from the

relevant provisions of the Conventions and of this Protocol until their final release, repatriation or

reestablishment”. Additional Protocol I (1977), art. 3(b).

ICRC, “Occupation and Other Forms of Administration of Foreign Territory” Expert Meeting (March 2012)

p. 42.

Aeyal Gross, The Writing on the Wall, Rethinking the International Law of Occupation (CUP 2017) p. 33.

John Westlake, Chapters on the Principles of International Law (CUP 1894) p. 266.

H. de Watteville, “The Military Administration of Occupied Territory in Time of War” 7 Transactions of the

Grotius Society, Problems of Peace and War, Papers Read before the Society in the Year 1921 (1921) pp. 133,

134, 146.

- 22 -

legislative measures are essential sooner or later”.

Leurquin’s observations on “prolonged

occupation” came in response to Germany’s four-year belligerent occupation of Belgium

during World War I. Correspondingly, in A. v. Oslo Sparebank (The Crown Intervening)

(1956), the Norwegian Supreme Court considered scenarios where an occupying Power may

be required to spend resources to protect public order and civil life during “a long-drawn-out

occupation”.

100

In this case the German occupation of Norway under consideration had lasted

for five years.

Although there is some recent practice of prolonged occupation,

101

such as Israel’s occupation

of the Palestinian territory, there is no specific legal provision governing prolonged occupation.

Rather, belligerent occupation is still governed by the principle of temporariness, implicit in

Article 43 of the Hague Regulations. An ICRC expert meeting in 2012 reflected that “nothing

under IHL [International Humanitarian Law] would prevent occupying powers from

embarking on long-term occupation. Occupation law would continue to provide the legal

framework applicable in such cases”.

102

That being said, the practice of prolonged belligerent

occupation is glaringly inconsistent with the contemporaneous object and purpose of the Hague

Regulations, which are “inspired by the desire to diminish the evils of war, as far as military

requirements permit”.

103

A number of United Nations experts have advised that occupations not exceed the 10-year

mark. Former United Nations Special Rapporteur Richard Falk proposes an international

convention to secure the realization and exercise of the right to self-determination of peoples

held under occupations exceeding ten years.

104

Drawing on the principle of temporariness,

former United Nations Special Rapporteur Michael Lynk observes that “[m]odern occupations

that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship

and good faith have not exceeded 10 years, including the American occupation of Japan, the

Allied occupation of western Germany and the American-led occupation of Iraq”.

105

For

example, Security Council resolution 1483 (2003), issued only two months after the US and

UK-led establishment of an occupying administration in Iraq, expressed “resolve that the day

when Iraqis govern themselves must come quickly”.

106

If occupations tend in general to last no

longer than 10 years, the question that then arises is this: Why has Israel’s occupation of

Palestine exceeded the half-century mark?

4. Occupying Power does not have sovereignty

The de facto and temporary nature of the occupation means that the occupying Power does not

have sovereign rights in the occupied territory, a fact borne out by the continued inviolability

of the rights of the protected population in the event of annexation enshrined in Article 47 of

Shwenk Edmund H., “Legislative Power of the Military Occupant under Article 43 Hague Regulations”, Yale

Law Journal, vol. 54(2) (1944–1945) pp. 393–416, 399.

100

Norway Supreme Court, A. v. Oslo Sparebank (The Crown Intervening) (14 January 1956) International Law

Reports Year, 1956, p. 791.

101

United Nations General Assembly resolution 33/15 (1978); United Nations General Assembly resolution

35/19 (1980) paras. 3, 9.

102

ICRC, “Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory” (2012) p. 13.

103

Hague Regulations (1907), preamble.

104

Cited in Adam Roberts, “Prolonged Military Occupation: The Israeli Occupied Territories Since 1967” 84(1)

American Journal of International Law (1990) pp. 44, 79.

105

Michael Lynk, “Prolonged Occupation or Illegal Occupant?” (EJILTalk, 16 May 2018).

106

United Nations Security Council resolution 1483 (2003), preamble.

- 23 -

the Fourth Geneva Convention (1949).

107

The principle was specifically articulated in Ottoman

Debt Arbitration (1925), whereby “[i]n no case does mere military occupation operate as a

transfer of sovereignty”.

108

Such considerations of the continued sovereignty of the ousted,

exiled or occupied sovereign led to the World War II practice of continuing recognition of

governments in exile, as embodying the “only exercise of sovereign power left to the people

of the country”.

109

As the Canadian military manual further highlights, “during occupation by

the enemy, the sovereignty of the legitimate government continues to exist but it is temporarily

latent”.

110

This also means that the occupying Power cannot alienate the land and municipal

properties of the occupied State, nor can it “lawfully take measures of a governmental character

affecting the property of those who are not its subjects”.

111

It also cannot acquire land belonging

to the occupied State through land swaps, as consent obtained from the ousted sovereign or the

political representatives of the occupied population cannot deprive the protected population of

their rights under the Fourth Geneva Convention, as such acts may amount to coercion.

112

5. Best interests of the occupied population

Another cornerstone of the law of belligerent occupation is that the territory is administered in

the best interests of the protected occupied population, while also legislating to serve legitimate

military interests.

113

Although not specifically provided for in the Hague Regulations and

Geneva Conventions, the deference to the best interests of the occupied population is implicit

in the Conventions’ humanitarian direction.

114

Article 43 of the Hague Regulations requires

107

Yoram Dinstein, The International Law of Belligerent Occupation (CUP 2009) p. 49. Dinstein writes that

“the main pillar of the law of belligerent occupation is embedded in the maxim that the occupation does not

affect sovereignty”.

108

Ottoman Debt Arbitration, Borel Arbitration, 3 International Law Reports 1925–1926, (28 April 1925) Case

No. 360. Similarly, the Greece Council of State expressed that “international law, in principle, imports no

derogation from the sovereignty of the State whose territory is thus occupied”. Greece Council of State (All

Chambers Combined), Marika Eliadi Maternity Home Case, 11 International Law Reports, 1919–1942, (16

June 1942) Case No. 152.

109

United States District Court, District of Maryland, Moraitis v Delany, Acting Director of Immigration, 10

International Law Reports, 1941–1942, (28 August 1942) Case No 96; Holland Special Criminal Court, the

Hague, re Van Huis, 13 International Law Reports, 15 November 1946, Case No 143.

110

Canada National Defence, Law of Armed Conflict at the Operational and Tactical Levels (Ottawa, 2001),

para. 1205(1).

111

Estonia, Court of Cassation, City of Parnu v Parnu Loan Society, 8 International Law Reports, 1935–1937,

(28 February 1921) Case No 231. The Estonian Court of Cassation found that the immoveable property of

communes must be treated as private property and may not be alienated or encumbered; France Civil Tribunal

of the Seine (Referes), Russian Trade Delegation v Societe Francaise Industrielle et Commerciale des Petroles

(Groupe Maloposka), International Law Reports, vol. 9, 1938–1940, (12 January 1940) Case No 83.

112

Yoram Dinstein, The International Law of Belligerent Occupation (CUP 2019) para. 789.

113

UNHCR “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories

occupied since 1967”, (15 March 2019) A/HRC/40/73, para. 29. “As such, the occupying power acquires no

sovereignty right over any of the territory, and it is prohibited from taking any steps towards annexation. It must

govern the occupied territory in good faith, and it must act as trustee in the best interests of the protected people

throughout the occupation, subject only to its own legitimate security and administrative requirements.”; In its

2001 Declaration, the International Committee of the Red Cross emphasized that “any action States may decide

to take at international level must be aimed at achieving practical results and at ensuring application of and

compliance with international humanitarian law, in the interests of the protected population”. Official Statement

of the International Committee of the Red Cross, Conference of High Contracting Parties to the Fourth Geneva

Convention, Geneva (5 December 2001).

114

The protection is echoed throughout the Commentaries to the Geneva Conventions, for example, “[t]he fact

that the Conventions deal with superior interests-the safeguarding of the lives and dignity of human beings” and

Article 63 of the Fourth Geneva Convention on denunciation, which “is dictated by the best interests of the

victims of war”. The Commentary to Article 7, on special agreements, illustrates that “[t]he only limits set by

the Convention concern the subject of the agreements, and are there in the interests of the protected persons”.

See Commentary to Article 7, International Committee of the Red Cross, Commentary: Fourth Geneva

Convention Relative to the Protection of Civilian Persons in Time of War (ICRC 1958).

- 24 -

the occupying Power to restore and ensure as far as possible the public order and civil life of

the occupied territory.

115

In this regard, Schwenk suggests, new legislation introduced by the

occupying Power must be limited to the “common interest or the interest of the population”.

116

For example, in the aftermath of World War II, the Burmese High Court of Judicature held that

courts established by the occupying Power in occupied Burma were legitimate acts which could

continue in force, given that they were courts to accommodate the needs of the local

population.

117

The protection is similarly echoed throughout the authoritative Commentaries to

the Geneva Conventions. For example, Article 63 on denunciation “is dictated by the best

interests of the victims of war”, and Article 7 places limits on special agreements “set by the

Convention concern[ing] … the interests of the protected persons”.

118

6. Conservationist principle

The conservationist principle deriving from Article 43 of the Hague Regulations (1907), and

later Article 64 of the Fourth Geneva Convention (1949), places obligations on the occupying

Power to maintain the status quo and refrain from making changes to the laws in force in the

occupied territory.

119

Article 43, for example, requires the belligerent occupant to respect

“unless absolutely prevented” the laws in force in the territory. As Gregory Fox describes, “the

conservationist principle serves the critical function of limiting occupiers’ unilateral

appropriation of the subordinate state’s legislative powers”.

120

Nevertheless, the limits on the

occupying Power’s legislative competence are less clear-cut. In 1954, Julius Stone suggested:

The most widely approved line of distinction is that the Occupant, in view of his merely

provisional position, cannot make permanent changes in regard to fundamental

institutions, for instance, change a republic into a monarchy. It becomes, however,

increasingly difficult to say with confidence what is a fundamental institution.

121

Where this boundary is drawn has been the subject of more recent extensive debate after the

transformative belligerent occupation of Iraq. While the interim government was analogous to

an occupying Power in many respects, it did have the imprimatur of a Security Council

Mandate, and the ICRC has therefore since stressed the “reassertion of the conservative

principles that underlie occupation law”, including the conservationist principle.

122

The general

115

Hague Regulations (1907), art. 43.

116

Edmund Schwenk, “Legislative Power of the Military Occupant Under Article 43, Hague Regulations”, Yale

Law Journal vol. 54 (1944–1945) pp. 393, 395–397.

117

High Court of Judicature, The King v Maung Hmin et al, Burma, 13 International Law Reports (11 March

1946), Case No 139. Contrariwise, orders, proclamations, decrees and regulations imposed by the German

occupying Power, with the intent to govern the occupied population of Alto Adige through terror, “could not

render lawful, even in respect of the principles of international law”. Italy Court of Cassation, re Mittermaier, 13

International Law Reports (2 May 1946), Case No. 28.

118

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (ICRC 1958) p. 412.

119

Yutaka Arai-Takahashi, “Preoccupied with Occupation: Critical Examinations of the Historical Development

of the Law of Occupation”, International Review of the Red Cross, vol. 94(855) (2012) p. 53; Italy, Council of

State, Anastasio v Ministerio Dell Industria E Del Commercio, International Law Reports, vol. 13 (22 January

1946), Case No. 50. Laws incompatible with the law of the occupied State may be annulled post bellum. As the

occupier does not have sovereign rights over the occupied territory and is prohibited from annexing the territory,

the conservationist principle constrains the legislative competence of the occupying Power. Fourth Geneva

Convention (1949), art. 47.

120

Gregory H. Fox, “Transformative Occupation and the Unilateralist Impulse”, International Review of the Red

Cross vol. 885 (March 2012) p. 237.

121

Julius Stone, Legal Controls of International Conflict (Rinehart, 1954) p. 698.

122

ICRC, “Occupation and Other Forms of Administration of Foreign Territory” Expert Meeting (March 2012)

p. 47.

- 25 -

position is that the occupying Power can legislate for the best interests of the occupied

population and considerations of legitimate military necessity.

123

Private law in the occupied

territory remains in force as the object is “not to put the occupant in a privileged position, but

to impose duties on the occupant”.

124

Therefore, private laws which are not lawfully abrogated

remain in force,

125

and the local institutions of the occupied territory remain intact.

126

7. Security interests of occupying Power

As previously outlined, the occupying Power administers the territory weighing the best

interests of the occupied population with those of military necessity. Articles deferring to the

security considerations of the occupying Power are peppered throughout the Hague

Regulations and Geneva Conventions, with many provisions containing clauses directly

pertaining to military necessity.

127

For example, Article 64(1) of the Fourth Geneva Convention

(1949) permits the repeal or suspension of penal laws in the occupied territory in cases “where

they constitute a threat to [the occupying Power’s] security”.

128

Article 64(2) contains a clause

of general application permitting the occupying Power to subject the occupied population to

essential provisions which inter alia “ensure the security of the occupying Power, of the

members and property of the occupying forces or administration, and likewise of the

establishments and lines of communication used by them”.

129

Additionally, Articles 55 and 62

allow for temporary restrictions on food, medical supplies and relief consignments when made

necessary by imperative military requirements and security.

130

B. Illegal occupations jus in bello

Many commentators on international law have adopted the position that the occupying Power’s

breach of core principles underpinning a belligerent occupation may indicate that the

occupation has become illegal under jus in bello. For example, in 2005, Orna Ben-Naftali,

Aeyal Gross and Keren Michaeli proposed lex feranda (future law) the “legal construction” of

a new norm.

131

Here, the authors propose that an occupation may be rendered illegal for breach

of “the normative order that generates the legal regime of occupation”,

132

among them

principles of temporality, annexation, the inalienability of sovereignty, gross violations of

human rights, and the breach of trust regarding self-determination. Correspondingly, former

United Nations Special Rapporteur Michael Lynk argues that the occupation may become

123

Belgium Court of Appeal of Liege, Mathot v. Longue, International Law Reports, vol. 1 (1919–1921), Case

No. 329.

124

Germano-Belgian Mixed Arbitral Tribunal, Militaire v German State, International Law Reports, vol. 2 (13

January 1923) Case No. 4.

125

Ibid.

126

Hague Regulations (1907), arts. 43, 56; Fourth Geneva Convention (1949), art. 47; Belgium Court of Cassation,

Borginon v Administration des Finances, International Law Reports, vol. 13 (20 May 1946) Case No. 153.

127

Article 49 of the Fourth Geneva Convention, for example, contains a qualifying clause limiting evacuations

and detentions of protected persons, unless “the security of the population or imperative military reasons so

demand”. It also narrowly permits the practice of assigned residence or internments, and curbs the access of

representatives of delegates of the Protecting Power “for imperative reasons of security”. Fourth Geneva

Convention (1949) arts. 49, 78, 143.

128

Fourth Geneva Convention (1949), art. 64(1).

129

Fourth Geneva Convention (1949), art. 64(2).

130

Fourth Geneva Convention (1949), art. 55.

131

Orna Ben-Naftali, Aeyal M.Gross and Keren Michaeli, “Illegal Occupation: Framing the Occupied

Palestinian Territory” Berkeley J. Int’l L., vol. 23 (2005) pp. 551, 553.

132

Ibid.

- 26 -

illegal if the occupying Power breaches any one of the following principles: the prohibition on

annexation, temporality, the best interests of the occupied population, and good faith.

133

Again, this illegality is rooted not in the breach of a direct norm on the legality of occupation,

but in the legal construction that significant breaches of the principles of belligerent occupation

invalidate the legality of the regime of occupation. As such, there is an “inner morality” which

dictates that the principles establishing a belligerent occupation ought to be followed, arguably

stemming from the principle of legality.

134

This research takes the approach that the occupying

Power’s breach of peremptory norms of international law provides particularly compelling

evidence of a breach of the principles of necessity and proportionality for self-defence jus ad

bellum.

135

For example, a belligerent occupation which operates denying the right to self-

determination of a people in Mandate territories may be considered a disproportionate use of

force. Accordingly, the violation of the principles underpinning self-defence may characterize

the occupation regime as an unlawful aggressor de lege lata (as the law exists).

C. Illegal occupations jus ad bellum

This section provides a non-exhaustive albeit consecutive overview of different occupations

which have been declared illegal under Security Council resolutions, General Assembly

resolutions and United Nations Commission on Human Rights resolutions, and in the

jurisprudence of the International Court of Justice.

1. Iraq’s occupation of Kuwait

The international response to Iraq’s occupation of Kuwait in 1990, illustrates that an occupation

arising from an illegal invasion of territory is unlawful jus ad bellum. Following Iraq’s invasion

and occupation of Kuwait,

136

which promised the “comprehensive and eternal” annexationist

merger of Iraq with Kuwait, the Security Council issued a number of resolutions calling for the

end of the occupation.

137

In October 1990, Security Council resolution 674 specifically denoted

the “illegal occupation”, reminding Iraq that “under international law it is liable for any loss,

damage or injury arising in regard to Kuwait and Third States, and their nationals and

corporations, as a result of the invasion and illegal occupation of Kuwait”.

138

In March 1991

Security Council resolution 686 called on Iraq to accept liability for any loss, damage and

injury arising under international law “as a result of the invasion and illegal occupation of

Kuwait”.

139

Security Council resolution 661, meanwhile, provided a list of sanctions

conditioned on Iraq’s failure to withdraw its troops from the territory and its usurpation of the

legitimate Government of Kuwait, calling on Third States “[n]ot to recognize any regime set

up by the occupying Power”.

140

133

UNHCR, “Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories

Occupied Since 1967, Michael Lynk” (23 October 2017) A/72/556, paras. 29‒38.

134

Lon L. Fuller, The Morality of Law (Yale University Press, 1964).

135

For extensive analysis on this point see Ralph Wilde, “Using the Master’s Tools to Dismantle the Master’s

House: International Law and Palestinian Liberation” Palestine Yearbook of International Law, vol. 22 (2019–

2020) p. 50.

136

United Nations Security Council resolution 660 (2 August 1990).

137

United Nations Security Council resolution 661 (6 August 1990) Article 9(b) of the resolution called on States

“[n]ot to recognize any regime set up by the occupying Power”; United Nations Security Council resolution 662

(1990); United Nations Security Council resolution 678 (1990).

138

United Nations Security Council resolution 674 (29 October 1990), para. 8.

139

United Nations Security Council resolution 686 (2 March 1991).

140

United Nations Security Council resolution 660 (1990), para. 2; United Nations Security Council resolution

661 (1990), paras. 1 and 9.

- 27 -

2. Armenia’s occupation of Azerbaijan

Between 1993 and the signing of the ceasefire agreement on 9 November 2020, Armenia

occupied the Nagorno-Karabakh region and surrounding districts.

141

In 1993, Security Council

resolution 822 (1993) condemned the Armenian invasion of the Kelbadjar district of the

Republic of Azerbaijan, the displacement of large numbers of civilians, while reaffirming the

inviolability of international borders and the inadmissibility of acquisition of territory though

use of force.

142

The General Assembly characterized the continuation of the occupation as an

internationally wrongful act: “No State shall recognize as lawful the situation resulting from

the occupation of the territories of the Republic of Azerbaijan, nor render aid or assistance in

maintaining this situation”.

143

General Assembly resolution 62/243 (2008) further recognized

the inalienable right of the population expelled from the occupied territory to return.

144

3. Uganda’s occupation of Ituri, Democratic Republic of Congo

In Case Concerning Armed Activities on the Territory of the Congo (2005), the International

Court of Justice held that the military intervention by Uganda in the Democratic Republic of

Congo breached the principle of non-intervention prohibiting a State from intervening “directly

or indirectly, with or without armed force, in support of an internal opposition in another State”

and constituted a grave violation of the use of force under Article 2(4) of the United Nations

Charter.

145

The Court found that the occupation of Ituri breached the principles of non-use of

force and non-intervention ad bellum:

[T]he Republic of Uganda, by engaging in military activities against the Democratic

Republic of the Congo on the latter’s territory, by occupying Ituri and by actively

extending military, logistic, economic and financial support to irregular forces having

operated on the territory of the DRC, violated the principle of non-use of force in

international relations and the principle of non-intervention.

146

Judge Verhoeven opined that the “occupation is unlawful because it results from the use of

force otherwise than in self-defence”.

147

On this basis the “occupying State bears an obligation,

for example, to make reparation for all ensuing damage”.

148

141

Statement by President of the Republic of Azerbaijan, Prime Minister of the Republic of Armenia and

President of the Russian Federation (10 November 2020).

142

United Nations Security Council resolution 884 (1993), para. 1 condemned the breach of the ceasefire and

Armenia’s occupation of the Zangelan District and the City of Goradiz, but falls short of terming the occupation

as illegal. See also United Nations Security Council resolution 822 (1993), which called for the withdrawal of

all occupying forces from the Kelbadjar district and other occupied areas. In July 1993, the UN Security Council

noted with alarm Armenia’s seizure of the Agdam district and called again for the withdrawal of occupying

forces from the district, United Nations Security Council resolution 853 (1993), para. 3. In October 1993, the

UN Security Council called for the immediate implementation of the CSCE Minsk Group’s “Adjusted

timetable”, and the withdrawal of forces from the occupied territories, United Nations Security Council

resolution 874 (1993), para. 5.

143

United Nations General Assembly resolution 62/243 (25 April 2008) The situation in the occupied territories

of Azerbaijan, para. 5.

144

Ibid.

145

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports, vol. 168 (19 December

2005), paras. 164–165.

146

Ibid., para. 345, p. 280.

147

Ibid., Declaration of Judge Ad Hoc Verhoeven, para. 5, p. 359.

148

Ibid.

- 28 -

4. Vietnam’s occupation of Democratic Kampuchea

In 1985, the United Nations Commission on Human Rights reaffirmed that “the continuing

illegal occupation of Kampuchea by foreign forces deprives the people of Kampuchea of the

exercise of their right to self-determination and constitutes the primary violation of human

rights in Kampuchea”.

149

The preambular clauses highlighted that the illegal occupation had

forced Kampucheans to flee from their homelands as displaced persons and refugees, whereas

the reported demographic changes threatened the “survival of the Kampuchean people and

culture”.

150

Meanwhile, joint communiques of the 17

and 19

Association of Southeast

Asian Nations (ASEAN) ministerial meetings expressed “deep concern at the continued

illegal occupation of Kampuchea”,

151

which violated the principles of self-determination and

non-interference in the internal affairs of a sovereign state.

152

The Foreign Ministers expressed

concern over the “demographic changes in Kampuchea brought about by the increasing number

of Vietnamese settlers and the on-going process of Vietnamization of Kampuchea”.

153

5. South Africa’s occupation of Namibia

In June 1968, the General Assembly condemned “the action of the Government of South Africa

designed to consolidate its illegal control over Namibia and to destroy the unity of the people

and the territorial integrity of Namibia” and called on Third States to desist from dealings aimed

at perpetuating the “illegal occupation” and to take economic and other measures to secure the

immediate withdrawal of South Africa.

154

The Security Council repeatedly referred to South

Africa’s “illegal administration” and declared that “the continued presence of the South African

authorities in Namibia is illegal”.

155

In 1969, the Security Council recognized “the legitimacy

of the struggle of the people of Namibia against the illegal presence of the South African

authorities in their Territory”.

156

Meanwhile, in 1985, Security Council resolution 577

commended “the People’s Republic of Angola for its steadfast support for the people of

Namibia in their just and legitimate struggle against the illegal occupation”.

157

In a subsequent advisory opinion, Legal Consequences for States of the Continued Presence of

South Africa in Namibia [hereafter South West Africa], the International Court of Justice held

that “the termination of the Mandate and the declaration of the illegality of South Africa’s

presence in Namibia are opposable to all States in the sense of barring erga omnes the legality

of a situation which is maintained in violation of international law”.

158

149

United Nations Commission on Human Rights, Situation in Kampuchea (27 February

1985) E/CN.4/RES/1985/12, para. 3.

150

United Nations Commission on Human Rights, Situation in Kampuchea (22 February

1988), E/CN.4/RES/1988/6, preamble.

151

Joint Communiqué of the 17

ASEAN Ministerial Meeting Jakarta, Issued in Jakarta, Indonesia (10 July

1984), paras. 18, 28.

152

1986 Joint Communiqué of the 19

ASEAN Ministerial Meeting, para. 15.

153

Ibid., para. 20.

154

A/RES/2372(XX.II), 12 June 1968, para. 9.

155

United Nations Security Council resolution 435 (1978), para. 2; United Nations Security Council resolution

276 (1970).

156

United Nations Security Council resolution 269 (1969), para. 4.

157

United Nations Security Council resolution 577 (1985), para. 5.

158

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 54, para. 125.

- 29 -

6. Portugal’s occupation of Guinea-Bissau

Like Namibia, the State of Guinea-Bissau was a former colony.

159

On 17 November 1967,

General Assembly resolution 2270 condemned the colonial war being waged by Portugal in

African territories under its administration, while recognizing the legitimacy of the people’s

struggle to achieve their freedom and independence. Later in 1973, General Assembly

resolution 3061 (1973) condemned the Government of Portugal for “perpetuating its illegal

occupation of certain sectors of Guinea-Bissau and the repeated acts of aggression committed

by its armed forces against the people of Guinea-Bissau and Cape Verde”.

160

In a preamble to

the resolution, the General Assembly noted that “the State of Guinea-Bissau assumes the sacred

duty to expel the forces of aggression of Portuguese colonialism” from its territory.

161

Meanwhile, Security Council resolution 321 reaffirmed the “inalienable right of the peoples of

Angola, Mozambique and Guinea (Bissau) to self-determination” and the “legitimacy of their

struggle to achieve that right”.

162

7. Israel’s occupation of Palestine

It is important to note that Israel’s occupation of the Palestinian and Syrian territories has

already been characterized in numerous General Assembly resolutions as an illegal

occupation.

163

In 1977, the General Assembly expressed its deep concern that “the Arab

territories occupied since 1967 have continued, for more than ten years, to be under illegal

Israeli occupation and that the Palestinian people, after three decades, are still deprived of the

exercise of their inalienable national rights”, reaffirming that “the acquisition of territory by

force is inadmissible and that all territories thus occupied must be returned”.

164

The reference

to the inalienable national rights of the Palestinian people speaks to a continuing and unlawful

deprivation of the Palestinian right of self-determination from 1948, thus preceding the

occupation.

165

General Assembly resolution 33/29 (1978) similarly echoed its deep concern

that the Arab territories “occupied since 1967 have continued, for more than eleven years, to

be under illegal Israeli occupation” and condemned “Israel’s continued occupation of

Palestinian and other Arab territories, in violation of the Charter of the United Nations”.

166

Likewise, the preambles to successive United Nations Economic and Social Council

resolutions include provisions on the grave situation in occupied Palestine and its impacts on

Palestinian women “resulting from the severe impact of the ongoing illegal Israeli occupation

and all of its manifestations”.

167

159

United Nations General Assembly resolution 3205 (XXIX) (17 September 1974).

160

United Nations General Assembly resolution 3061 (XXVIII), Illegal Occupation by Portuguese Military

Forces of Certain Sectors of the Republic of Guinea-Bissau and the Acts of Aggression Committed by Them

Against the People of the Republic, para. 2.

161

Ibid.

162

United Nations Security Council resolution 312 (1972) Territories under Portuguese Administration.

163

United Nations General Assembly resolution 32/20 (Nov. 25, 1977) preamble, para. 4; United Nations

General Assembly resolution 33/29 (7 December 1978) preamble, para. 4; United Nations General Assembly

resolution 34/70 (6 December 1979), preamble, para. 5.

164

United Nations General Assembly resolution 32/20 (1977), preamble; See also United Nations General

Assembly resolution 3414 (XXX) (5 December 1975), para. 1.

165

United Nations General Assembly resolution 32/20 (1977), para. 1.

166

United Nations General Assembly resolution 33/29 (7 December 1978), para. 1.

167

United Nations Economic and Social Council, “Situation of and assistance to Palestinian women”

E/RES/2010/6 (20 July 2010); United Nations Economic and Social Council, “Situation of and assistance to

Palestinian women” E/RES/2013/17 (9 October 2013); United Nations Economic and Social Council, “Situation

of and assistance to Palestinian women” E/RES/2015/13, 19 August 2015; United Nations Economic and Social

Council, “Situation of and assistance to Palestinian women” E/RES/2016/4, 22 July 2016.

- 30 -

D. Israel’s positions on occupied Palestine

This section provides a preface to the main arguments provided by Israel to justify its prolonged

occupation of the Palestinian territory, providing insights on (1) Israel’s arguments on the

nature of the belligerent occupation; (2) Israel’s arguments justifying the presence of

settlements in the West Bank, including East Jerusalem; and (3) Israel’s positions on the de

jure and de facto annexation of territory in occupied Palestine. The section is a reference point

for the central Israeli arguments, which are threaded throughout and rebutted in the study.

1. Israel’s arguments on belligerent occupation

Politically, the position of Israel since 1967 is that Palestine is not occupied territory but is

rather “disputed territory”. Israel’s Ministry of Foreign Affairs states that “[i]n legal terms, the

West Bank is best regarded as territory over which there are competing claims which should

be resolved in peace process negotiations – and indeed both the Israeli and Palestinian sides

have committed to this principle”.

168

In 2003, Ariel Sharon publicly retracted a statement that

Israel’s control over the West Bank and the Gaza Strip was an “occupation”, instead conveying

that he should have referred to Israel’s presence as “control over disputed lands.”

169

In 2012, a committee commissioned by Prime Minister Benjamin Netanyahu and then–Justice

Minister Professor Yaacov Neeman was headed by retired Supreme Court Justice Edmund

Levy, examining inter alia the legal status of Israel’s presence in the West Bank under

international law. The resulting “Levy Report” concluded that “from the perspective of

international law, the [laws] of ‘occupation’, as reflected in the relevant international

conventions, do not apply to the special historical and legal circumstances of Israeli presence

in Judea and Samaria”.

170

Rather, the Committee argued, the legal basis for Israel’s sovereignty

over the entirety of historic Palestine derives from the Mandate for Palestine. As such, the

partition plan enshrined in General Assembly resolution 181, in addition to the subsequent

Jordanian occupation, did not have the legal imprimatur to override the Mandate.

171

Interestingly, the Committee asserted that given the prolonged nature of Israel’s control over

the Palestinian territory, Israel’s occupation does not fulfil the temporary condition for a

belligerent occupation, which envisages a situation of short-term occupation. The Committee’s

conclusions on this point are worth presenting in full:

After having considered all the approaches placed before us, the most reasonable

interpretation of those provisions of international law appears to be that the accepted

term “occupier” with its attending obligations, is intended to apply to brief periods of

the occupation of the territory of a sovereign state pending termination of the conflict

between the parties and the return of the territory or any other agreed-upon

arrangement. However, Israel’s presence in Judea and Samaria is fundamentally

different: Its control of the territory spans decades and no one can foresee when or if it

will end.

172

168

Ministry of Foreign Affairs, “Israeli Settlements and International Law” (30 November 2015).

169

Rebecca Trounson And Megan K. Stack, “Sharon Says ‘Occupation’ Not What He Meant” Los Angeles

Times, 28 May 2003.

170

Report of the Committee to Examine the Status of Building in the Judea and Samaria Area (Levy Report)

June 2012, p. 83.

171

Ibid., para. 8.

172

Ibid., para. 5.

- 31 -

Moreover, according to the Levy Report, occupation only applies to the territory of a State, and

the West Bank was not under any sovereignty when it was occupied.

173

The report maintains

that “the territory was captured from a state (the kingdom of Jordan), whose sovereignty over

the territory had never been legally and definitively affirmed, and [which] has since renounced

its claim of sovereignty; the State of Israel has a claim to sovereign right over the territory”.

174

However, in contradistinction to the political arguments proffered publicly, the legal arguments

submitted to Israel’s Supreme Court by successive Israeli governments since 1967 have

supported the position that the nature of Israel’s effective control over, and administration of,

the Palestinian territory, is one of belligerent occupation.

175

For example, in Gaza Coast

Regional Council v Knesset of Israel (9 June 2005), the Court considered the positions of

successive Israeli governments on the question of belligerent occupation:

According to the legal outlook of all Israel’s governments as presented to this court –

an outlook that has always been accepted by the Supreme Court – these areas are held

by Israel by way of belligerent occupation. The legal regime that applies there is

determined by the rules of public international law and especially the rules relating to

belligerent occupation.

176

In 2005, Israel removed its military forces from the Gaza Strip, and evacuated and dismantled

the settlements there.

177

Upon removal of the military from Gaza, under Israel’s

Disengagement Law, Israel considered that it was no longer in belligerent occupation of the

Gaza Strip. A ruling from Israel’s High Court of Justice in 2008 held:

[S]ince September 2005 Israel no longer has effective control over what happens in the

Gaza Strip. Military rule that applied in the past in this territory came to an end by a

decision of the government, and Israeli soldiers are no longer stationed in the territory

on a permanent basis, nor are they in charge of what happens there.

178

Almost two decades later, in March 2023, the Knesset voted to repeal the Disengagement Law

(2005), which saw the dismantling of settlements and the removal of Israeli settlers from the

Gaza Strip. By repealing the law, Israel has removed domestic legal impediments to the

construction of settlements in the Gaza Strip, leaving it to the competence of the Military

Commander to decide on when to proceed with settlement construction.

At the same time, Israel further argues that the West Bank and Gaza Strip do not meet the

stipulation of “territory of a High Contracting party” to the Geneva Conventions for the

purposes of establishing total or partial occupation. Article 2(2) of the Fourth Geneva provides

that “the Convention shall also apply to all cases of partial or total occupation of the territory

of a High Contracting Party, even if the said occupation meets with no armed resistance”.

179

According to former Israeli Attorney General Meir Shamgar, writing in 1971, the relevant

173

Yesh Din, Unprecedented: A Legal Analysis of the Report of the Committee to Examine the Status of

Building in Judea and Samaria [the West Bank] (“The Levy Committee”) – International and Administrative

Aspects (January 2014) p. 10.

174

Report of the Committee to Examine the Status of Building in the Judea and Samaria Area (Levy Report)

June 2012, para. 5.

175

David Kretzmer, Yael Ronen, The Occupation of Justice, The Supreme Court of Israel and the Occupied

Territories (OUP 2021) p. 64.

176

HCJ 1661/05 Gaza Coast Regional Council v Knesset of Israel (9 June 2005) para. 3.

177

Orna Ben-Naftali, Michael Sfard, Hedi Viterbo, The ABC of the OPT, A Legal Lexicon of the Israeli Control

Over the Occupied Palestinian Territory (CUP 2018) p. 25.

178

HCJ 9132/07 Jabar Al-Bassiouni Ahmed v Prime Minister et al. (27 January 2008) para. 12.

179

Fourth Geneva Convention (1949), art. 2(2).

- 32 -

provision of the Fourth Geneva Convention (1949) is not applicable to Israel’s occupation

owing to the missing sovereign. According to Shamgar:

The whole idea of the restriction of military government powers is based on the

assumption that there had been a sovereign who was ousted and that he had been a

legitimate sovereign… Accordingly, the Government of Israel distinguished between

the legal problem of the applicability of the Fourth Convention to the territories under

consideration which, as stated, does not in my opinion apply to these territories, and

decided to act de facto in accordance with the humanitarian provisions of the

Convention.

180

The Geneva Conventions, although signed by Israel, have not been transposed into domestic

law. Accordingly, the Fourth Geneva Convention cannot be invoked by petitioners before the

Israeli Supreme Court, and only the customary provisions of the Conventions are applied by

the Court.

181

2. Israel’s legal arguments pertaining to settlements

Israel provides three core arguments for its claim that it is lawfully settling occupied Palestine:

first, that rights were granted to settle the territory under the Palestine Mandate; second, that

private acts of settlement are not prohibited under the Fourth Geneva Convention (1949); and

third, that agreements concluded between Israel and the Palestinians relegate the matter of

settlements to final status negotiation.

Israel grounds its arguments for continued settlement expansion in Article 6 of the Palestine

Mandate, which provides that in administering Palestine, the Mandatory Power ensure:

that the rights and position of other sections of the population are not prejudiced, shall

facilitate Jewish immigration under suitable conditions and shall encourage, in co-

operation with the Jewish agency referred to in Article 4, close settlement by Jews, on

the land, including State lands and waste lands not required for public purposes.

182

Professor Eugene Rostow, former US Under Secretary of State for Political Affairs, cited as

authority by Israel’s Ministry of Foreign Affairs, similarly roots Jewish claims to the West

Bank in the continued applicability of the Palestine Mandate:

Many believe that the Palestine Mandate was somehow terminated in 1947, when the

British Government resigned as mandatory, or in 1948, when the British withdrew. This

is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust

property, or is dismissed. The authority responsible for the trust appoints a new trustee,

or otherwise arranges for its winding up. Thus, in the case of the Mandate for German

South West Africa, the International Court of Justice found the South African

Government to have been derelict in its duties as the mandatory power, and it was

therefore deemed to have resigned.

183

180

Shamgar, M. “The Observance of International Law in the Administered Territories” 1 Israeli Yearbook on

Human Rights (1971) 262–77.

181

HCJ 606/78 Ayub et al. v. Minister of Defence et al., 33(2) PD pp. 113, 120–2; 127–8; Yoram Dinstein, The

International Law of Belligerent Occupation (CUP 2019) p. 31, para. 89.

182

League of Nations, Mandate for Palestine, art. 6.

183

Eugene Rostow, “Correspondence” AJIL, vol. 84 (1990) pp. 717, 718 – 719.

- 33 -

In this vein, Israel’s Ministry of Foreign Affairs notes that “[s]ome Jewish settlements, such as

in Hebron, existed throughout the centuries of Ottoman rule, while settlements such as Neve

Ya’acov, north of Jerusalem, the Gush Etzion bloc in southern Judea, and the communities

north of the Dead Sea, were established under British Mandatory administration”.

184

Taking the subsequent application of Article 49 of the Fourth Geneva Convention to the

territory occupied in 1967, the Ministry of Foreign Affairs subtly questions the applicability of

the Geneva Conventions to territory “such as the West Bank over which there was no previous

legitimate sovereign”.

185

It contends that “the case of Jews voluntarily establishing homes and

communities in their ancient homeland, and alongside Palestinian communities, simply does

not match the kind of forced population transfers contemplated by Article 49(6)”.

186

The

Ministry argues that Article 49(6) does not in any way “prohibit the movement of individuals

to land which was not under the legitimate sovereignty of any state and which is not subject to

private ownership”.

187

In this vein, the Ministry notes the published opinion of Professor

Eugene Rostow, who suggests that “[t]he Jewish right of settlement in the area is equivalent in

every way to the right of the local population to live there”.

188

The Ministry gives assurances

that the Supreme Court of Israel examines property claims in a process “which is designed to

ensure that no communities are established illegally on private land”.

189

It further dismisses the

notion that the settlements constitute grave breaches of the Geneva Conventions, suggesting

that provision for grave breaches derives from the Additional Protocols, to which Israel is not

a party.

Last, Israel notes that the agreements concluded between Israel and the Palestine Liberation

Organization (PLO) contain no clauses prohibiting settlement construction in occupied

Palestine. Specifically, Israel recalls that the Israel Palestine Interim Agreement (1995)

expressly provides that “the Palestinian Authority has no jurisdiction or control over

settlements or Israelis and that the settlements are subject to exclusive Israeli jurisdiction

pending the conclusion of a permanent status agreement”.

190

3. Israel’s arguments pertaining to annexation

Introducing its position on the “reunification” of Jerusalem, Israel’s Ministry of Foreign Affairs

explains how “[t]he Zionist movement, which arose to give modern political expression to the

Jewish people’s national identity, draws its name from the ancient Hebrew word for Jerusalem,

and always viewed the return to Zion – and the restoration of Jewish sovereignty in the ancient

Land of Israel – as its primary purpose”.

191

The Ministry further highlights how Jerusalem was

“reunified” in 1967 “as a result of the six-day war launched against Israel by the Arab

world”.

192

The Israeli Ministry of Foreign Affairs clearly articulates how Israel struck Egypt in

pre-emptive acts of aggression:

Invoking its inherent right of self-defense, Israel preempted the inevitable attack,

striking Egypt’s air force while its planes were still on the ground … Israel had no

choice but to quickly counterattack, capturing the Jordanian-occupied West Bank. On

184

Ministry of Foreign Affairs, Israeli Settlements and International Law (30 November 2015).

185

Ibid.

186

Ibid.

187

Ibid.

188

Ibid.

189

Ibid.

190

Ibid.

191

Israel Ministry of Foreign Affairs, 1967: The Reunification of Jerusalem (2013).

192

Ibid.

- 34 -

7 June, after particularly harsh fighting, Israeli paratroopers liberated the Old City of

Jerusalem.

193

Almost immediately after the start of the occupation, on 27 June 1967, the Knesset amended

the Law and Administrative Ordinance 1948, adding the declaration that the “law, jurisdiction

and administration of the State of Israel government shall extend to any area of “Eretz Israel”

it so orders”. Notably, the land of Eretz Israel refers to the entirety of the territory of Mandate

Palestine.

194

The following day, on 28 June 1967, Israel amended the Basic Law of 1950 to

include the newly expanded Jerusalem Municipality.

Successive governments have continued the position that Jerusalem “undivided” is the capital

of the State of Israel. The most recent reiteration of this came in October 2022, from then–

Prime Minister Yair Lapid, who stated that “Jerusalem is the eternal undivided capital of Israel

and nothing will change that”.

195

More recently, on 21 May 2023, in an address to the Cabinet,

Prime Minster Netanyahu announced that a Cabinet meeting would be held in occupied

Jerusalem “at the foot of the Temple Mount” and applauded his government’s insistence on

settlement construction in occupied Jerusalem, stating:

Some prime ministers were willing to give in to these pressures … We acted differently

… I am proud of the great merit I had to build new neighborhoods in Jerusalem like

Har Homa, Givat Hamatos and Ma’aleh Hazeitim, in which tens of thousands of Israelis

live. We did this under massive international pressure and we stood up to that

pressure.

196

4. Concluding remarks

While the Israeli analysis correctly identifies the continued application of the Mandate as a

sacred trust, the argument conveniently sidesteps the context of the preceding Article 5 of the

Palestine Mandate, which requires that “[t]he Mandatory shall be responsible for seeing that

no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the

Government of any foreign Power”.

197

Further, Israel ignores the categorization of Palestine as

a Class A Mandate, whose provisional independence was accordingly recognized under the

League of Nations.

Although Israel relies on Professor Rostow’s conclusion that there is a Jewish right of

settlement equivalent to the rights of the local population, Rostow concedes in the same article

that even though “the State Department has never denied that under the mandate ‘the Jewish

people’ has the right to settle in the area”, it “took the position that Jewish settlements in the

West Bank violated Article 49(6) of the Fourth Geneva Convention of 1949, dealing with the

protection of civilian persons in time of war”.

198

193

Israel Ministry of Foreign Affairs, 1967: The Six-Day War and the Historic Reunification of Jerusalem

(2013).

194

John Quigley, “Jerusalem: The Illegality of Israel’s Encroachment” The Palestine Yearbook of International

Law (1996–1997) 30, fn. 49.

195

Amarachi Orie, “Australia Reverses Decision to Recognise West Jerusalem as Israel’s Capital”, Sky News, 25

October 2022.

196

Lahav Harkov, “Netanyahu hits Back at Abbas’ lies that Jews Have no History in Jerusalem” The Jerusalem

Post, 21 May 2023.

197

League of Nations, Mandate for Palestine, art. 5.

198

Eugene Rostow, “Correspondence” AJIL, vol. 84 (1990) pp. 717, 719.

- 35 -

These arguments will be examined in further detail in later sections, highlighting how Israel’s

policies reveal an annexationist intent underlying the illegal occupation.

III. Legality of occupation

Belligerent Occupation can be considered illegal jus ad bellum when the occupation arises from

an act of aggression. Concomitantly, an occupation which is carried out in breach of the

principles of immediacy, necessity, and proportionality for self-defence may likewise become

an illegal occupation under the jus ad bellum. This section examines in further detail these two

grounds for illegal occupation. Having established the two grounds for illegal occupation under

the jus ad bellum, the section examines the occupying Power’s breach of the external right of

self-determination, a peremptory norm of international law, as a separate and subsequent

ground of illegality.

A. Unlawful occupation arising from an act of aggression

Article 2(4) of the United Nations Charter contains the general rule against unlawful use of

force whereby “[a]ll Members shall refrain in their international relations from the threat or use

of force against the territorial integrity or political independence of any State, or in any other

manner inconsistent with the purposes of the United Nations”, with the exception of (1)

mandated force under Security Council resolution; or (2) self-defence in response to an armed

attack as per Article 51 of the United Nations Charter.

199

The prohibition on aggression is

binding on all States as a peremptory norm of international law from which no derogation is

permitted.

200

Accordingly, a belligerent occupation arising from an act of aggression will be

tainted with illegality ad bellum. General Assembly resolution 3314 (1974), which both defines

and provides examples of acts of aggression, considers even temporary military occupations

resulting from an invasion or an attack carried out in contravention of the United Nations

Charter as acts of aggression.

201

European States consider that where the military occupation

or acquisition of another European territory arises through a direct or indirect use of force in

contravention of international law, “[n]o such occupation or acquisition will be recognized as

legal”.

202

In these circumstances, it is the function of the Security Council to make a

determination on the existence of an illegal act of aggression.

203

Further, an act of aggression including “any military occupation, however temporary”,

resulting from an invasion or attack by the armed forces of a State of the territory of another

State, may be prosecuted as an international crime.

204

In 1923, the draft League of Nations

Treaty of Mutual Assistance characterized any war of aggression as an “international crime”.

205

Following this, in 1976, the International Law Commission listed the breach of the prohibition

on aggression as an international crime.

206

Further, Article 8 (bis) of the Rome Statute of the

International Criminal Court provides that the crime of aggression “means the planning,

199

UN Charter, art. 2(4).

200

Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), art. 26,

Commentary, p. 85, para. 5.

201

United Nations General Assembly resolution 3314 (XXIX), art. 3. Definition of Aggression.

202

Conference on Security and Co-Operation in Europe Final Act (Helsinki 1975). Questions relating to

Security in Europe, Territorial Integrity of States.

203

UN Charter (1945), art. 39.

204

Article 8(2)(a), statute of the International Criminal Court.

205

See League of Nations, Official Journal, Fourth Year, No. 12, December 1923, p. 1521.

206

International Law Commission, “Report of the International Law Commission on its twenty-eighth session”,

(1976) art. 19(3)(a).

- 36 -

preparation, initiation or execution, by a person in a position effectively to exercise control

over or to direct the political or military action of a State, of an act of aggression which, by its

character, gravity and scale, constitutes a manifest violation of the Charter of the United

Nations”. Although there have been no prosecutions for the crime of aggression at the

International Criminal Court to date, the Nuremberg Tribunal considered a number of cases

where planning a military occupation amounted to participation in acts of aggression.

Article 6(1) of the Charter of the International Military Tribunal at Nuremberg provided for a

crime against peace, “namely, planning, preparation, initiation or waging of a war of

aggression, or a war in violation of international treaties, agreements or assurances”, which

notably did not mention belligerent occupation.

207

Nevertheless, at Nuremberg, the Tribunal in

Von Schirach explained obiter:

As has already been seen, Austria was occupied pursuant to a common plan of

aggression. Its occupation is, therefore, a “crime within the jurisdiction of the Tribunal”

as that term is used in Article 6 (c) of the Charter. As a result, “murder, extermination,

enslavement, deportation and other inhumane acts” and “persecutions on political,

racial or religious grounds” in connection with this occupation constitute a crime

against humanity under that Article.

208

Similarly, the Tribunal, in Von Papen, considered whether the defendants were criminally

liable for aggressive acts arising from an occupation.

209

In summation, a belligerent occupation resulting from an act of aggression is illegal from the

outset. Further, an occupation carried out pursuant to a common plan of aggression may be

prosecuted as an international crime, for which there is individual criminal liability.

B. Unlawful occupation arising from a breach of self-defence

The general consensus is that belligerent occupation may be necessary, and therefore

constitutes a lawful military administration ad bellum, when it arises from a use of force in

self-defence.

210

An occupation as an act of self-defence against an armed attack is legitimate

for as long as the armed attack continues. Dapo Akande and Antonios Tzanakopoulos opine

that “any occupation that is the direct consequence of an armed attack constitutes a continuing

armed attack” for the purposes of self-defence.

211

The question of when the continuing act of

self-defence ends is answered simply: when it is no longer necessary to repel an armed attack

through the use of force. Either of two scenarios may arise: first, the armed attack has taken

place, giving rise to a right to use necessary and proportionate force in self-defence, and is

over; or secondly, an armed attack leads to an occupation, and the armed attack continues as

long as the occupation lasts.

207

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and

Charter of the International Military Tribunal (London, 8 August 1945), art. 6.

208

International Military Tribunal at Nuremberg, Trial of Goring, von Schirach et al, 1946–49, Law Reports of

the Trials of War Criminals, vol. 10 (1946–1949) p. 533.

209

International Military Tribunal at Nuremberg, Trial of Goring, Von Papen et al, 1946–49, 10 Law Reports of

the Trials of War Criminals (1946–1949) pp. 519, 537; There the Tribunal found “no evidence that he [Von Papen]

was a party to the plans under which the occupation of Austria was a step in the direction of further aggressive

action, or even that he participated in plans to occupy Austria by aggressive war if necessary”. In a dissenting

opinion, the Soviet member of the IMT proposed that the evidence established beyond doubt that “Von Papen

actively participated in the Nazi aggression against Austria culminating in its occupation”.

210

Stephen M. Schwebel, “What Weight to Conquest?” Am. J. Int’l L., vol. 64 (1970) pp. 344, 345–346.

211

Dapo Akande and Antonios Tzanakopoulos, “Use of Force in Self-Defence to Recover Occupied Territory:

When Is It Permissible?” (EJIL Talk, 18 November 2020).

- 37 -

Usually, a use of force in self-defence necessitates contemporaneous communication from the

belligerent State to the Security Council that the State is acting in self-defence.

212

Greenwood suggests, “the fact that a State has not reported measures which it subsequently

claims were taken in self-defence is likely to make that claim less plausible”.

213

Article 51 of

the United Nations Charter provides for the right of self-defence which continues “until the

Security Council has taken measures necessary to maintain international peace and security”.

214

In any case, the right of self-defence is subject to the customary international law “conditions

of necessity and proportionality”.

215

The legitimacy of continued occupation as an act of self-

defence may be temporally limited; and certainly, as an occupation continues, it may

subsequently fail to satisfy the principles of necessity and proportionality.

216

Our first consideration is the possibility of occupation becoming illegal at some point durante

bello. As advanced by Cassese, the longer the military occupation continues, the more difficult

it is to satisfy the conditions of military necessity and proportionality.

217

The principle of

military necessity in self-defence is explained by Webster in the seminal Caroline incident,

where “the act justified by that necessity of self-defence, must be limited by that necessity, and

kept clearly within it”.

218

Azarova reflects on cases of belligerent occupation that do not meet

with resistance from the local population, stating that “the idea of regulating the manner in

which a state defends the indefensible cause of territorial aggrandizement and regime change

is inimical to the logic of the right to self-defence as a narrow and stringent exception to the

cardinal prohibition on the use of interstate force”.

219

Similarly, the principle of proportionality further restricts the use of force permissible for self-

defence. Proportionality was described abstractly by Saint Thomas Aquinas in Summa

Theologica: “Whenever a thing is for an end, its form must be determined proportionally to

that end; as the form of a saw is such as to be suitable for cutting … everything that is ruled

and measured must have a form proportionate to its rule and measure”.

220

Christopher

Greenwood advises that a State “must also show that all its measures involving the use of force,

throughout the conflict, are reasonable, proportionate acts of self-defence. Once its response

ceases to be reasonably proportionate, then it is itself guilty of a violation of the jus ad

bellum”.

221

In the International Court of Justice decision Case Concerning Oil Platforms, the

Court considered the disproportionate “scale”

222

of a US military operation to be an unlawful

212

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)

International Court of Justice Reports, vol. 3, 1996 (8 July 1996) para. 44.

213

Christopher Greenwood, “Self-Defence” OUP Max Planck Encyclopedia of Public International Law, para.

31.

214

Charter of the United Nations, art. 51.

215

International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v

United States of America) International Court of Justice Reports 1984, p. 392, para. 41. This was restated in the

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 3

International Court of Justice Reports 1996 (8 July 1996) para. 41.

216

Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (CUP 1995) p. 99; Christine Gray,

International Law and the Use of Force (OUP 2008) pp. 154–155.

217

Ibid.

218

Parliamentary Papers [1842] in 30 British and Foreign State Papers pp. 195, 202.

219

Valentina Azarova, “Towards a Counter-Hegemonic Law of Occupation: On the Regulation of Predatory

Interstate Acts in Contemporary International Law” Yearbook of International Humanitarian Law, vol. 20

(2017) p. 132.

220

Cited in Emily Crawford, “Proportionality” Oxford Public International Law, Max Planck Encyclopedia of

Public International Law (May 2011).

221

Christopher Greenwood, “The Relationship Between Ius Ad Bellum and Ius In Bello”, Review of International

Studies, vol. 9(4) (1983) pp. 221, 223.

222

International Court of Justice, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of

America, (Judgment) International Court of Justice Reports vol. 161 (6 November 2003) para. 77.

- 38 -

act of self-defence: the United States had destroyed two Iranian frigates and a number of other

naval vessels and aircraft, in response to an alleged armed attack by Iran which had merely

damaged, not sunk, a single US warship, without loss of life.

223

Similarly, a “massive and

extended military action ranging from the bombing of the upper Kodori Valley to the

deployment of armoured units to reach extensive parts of Georgia”

224

was considered by the

Independent International Fact-Finding Mission on the Conflict in Georgia to have gone “far

beyond the reasonable limits of defence”, including military acts beyond the terms of the

ceasefire.

225

Likewise, weighing proportionality in the Nicaragua case, the International Court

of Justice found that “the reaction of the United States in the context of what it regarded as

self-defence was continued long after the period in which any presumed armed attack by

Nicaragua could reasonably be contemplated”.

226

The temporality considerations implicit to

the proportionality analysis are further echoed in Article 51 of the Charter of the United

Nations, which provides the right to self-defence only until the Security Council takes

measures.

More significantly, in the Nuclear Weapons advisory opinion, the International Court of Justice

opined that “a use of force that is proportionate under the law of self-defence, must, in order to

be lawful, also meet the requirements of the law applicable in armed conflict which comprise

in particular the principles and rules of humanitarian law”.

227

This draws an important bridge

to the jus in bello, and any manifest breaches of the principles underpinning occupation law

may weigh the balance of a proportionality analysis on self-defence toward a finding that the

occupation is unlawful.

228

Such principles of occupation law cogently outlined by former

United Nations Special Rapporteur Michael Lynk include: the prohibition on annexation,

temporality, and whether the occupying Power is acting in good faith and in the best interests

of the occupied population.

229

1. Violations of peremptory norms breach necessity and proportionality

In some cases, prolonged occupation may be predicated on the violation of numerous

international humanitarian law and international law norms, including peremptory norms. For

example, the prohibitions on (1) the acquisition of territory by force, (2) the denial of the right

of self-determination, and (3) the imposition of an apartheid regime of institutionalized racial

discrimination to maintain domination are noted as widely accepted peremptory norms by the

International Court of Justice and International Law Commission, among others.

230

223

Ibid.

224

Independent International Fact-Finding Mission on the Conflict in Georgia, volume I, (September 2009) p. 24,

para. 21.

225

Ibid., p. 23, para. 21.

226

International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v

United States of America) (Judgment, Merits) International Court of Justice Reports 1984, p. 213, para. 237.

227

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)

International Court of Justice Reports 1996, p. 245, para. 42.

228

UNHCR, “Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories

Occupied Since 1967, Michael Lynk” (23 October 2017) A/72/556.

229

Ibid., paras. 29‒38.

230

International Court of Justice, East Timor (Portugal v. Australia), Judgment, International Court of Justice

Reports 1995, pp. 90, 102, para. 29; International Court of Justice, Legality of the Threat or Use of Nuclear

Weapons, (Advisory Opinion) International Court of Justice Reports 1996, pp. 226, 258, para. 83; and

International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Preliminary Objections) (Judgment) International Court of Justice Reports 1996, p. 595, pp. 615–

616, paras. 31–32; The torture and crimes against humanity have been extensively documented by human rights

organizations. Addameer, Torture Positions in Israeli Prisons (2020); Human Rights Watch, “Systematic

Oppression and Institutional Discrimination” in A Threshold Crossed Israeli Authorities and the Crimes of

- 39 -

peremptory norm is “accepted and recognized by the international community of States as a

whole as a norm from which no derogation is permitted and which can be modified only by a

subsequent norm of general international law having the same character”.

231

This study rests

on the legal orthodoxy that the use of force in violation of the peremptory norms of (1) non-

acquisition of territory by force, (2) self-determination, and (3) the prohibition of racial

discrimination and apartheid may constitute an illegal use of force which delegitimizes the

continuing occupation.

232

These three principles, taken separately or together with the breach

of principles and rules of international humanitarian law, may indicate a breach of the

principles of immediacy, necessity and proportionality for the use of force in self-defence.

2. Annexation, an illegal acquisition of territory breaching self-defence

Critically, both de facto and de jure annexations of occupied territory are prohibited as illegal

acquisitions of territory through force, in violation of the United Nations Charter, and breach

the requirements of necessity and proportionality for self-defence. The act of annexation is,

concomitantly, a breach of the prohibition on the acquisition of territory by force, a violation

of the right of self-determination, and an act constituting the international crime of aggression

incurring individual criminal liability. The Working Group on the Crime of Aggression for the

Preparatory Commission of the International Criminal Court, for example, distinguishes

between annexation and acts of incorporation for the purposes of the Rome Statute crime of

aggression. Acts of incorporation pertain to the signing of a law or decree, which is for all

intents and purposes a de jure annexation of territory.

233

Hershey suggests that the

incorporation of subjugated territory “must be shown by some act showing intention (such as

a decree of annexation) and ability to maintain permanent possession”.

234

However, the

language in the Rome Statute refers to “any annexation”, language which is broader than

incorporation and may encompass both de facto and de jure annexations, as well as full or

partial annexation of territory.

235

De jure annexation takes place when two conditions are satisfied: first, there is a “forcible

seizure” of the territory, followed by the annexing State’s “unilateral assertion of title”, which

indicates its intention to annex, integrate or merge the territory.

236

De facto annexation occurs

where the annexing State forcibly seizes the territory; the intention to annex, however, is not

formally expressed, but implied through the State’s measures and actions.

237

Wilde suggests

that an examination of annexation may be useful for “addressing certain elements of existential

Apartheid and Persecution (27 April 2021); B’Tselem and PCHR, Unwilling and Unable Israel’s Whitewashed

Investigations of the Great March of Return Protests (27 April 2018).

231

Vienna Convention on the Law of Treaties (1969), arts. 53 and 64.

232

See also Ralph Wilde, “Using the Master’s Tools to Dismantle the Master’s House: International Law and

Palestinian Liberation” Palestine Yearbook of International Law, vol. 22 (2019–2020) p. 33.

233

Preparatory Commission for the International Criminal Court, Historical Review of Developments Relating to

Aggression (18 January 2002) PCNICC/2002/WGCA/L.1/Add.1, p. 65.

234

Amos S. Hershey, The Essentials of International Public Law and Organization (Macmillan 1930) p. 277.

235

Rome Statute of the International Criminal Court, Amendments to the Rome Statute of the International

Criminal Court, (Kampala, 11 June 2010) Adoption of Amendments on the Crime of Aggression.

236

See Judge Lauterpacht, International Court of Justice, Case concerning Application of the Convention on the

Prevention and Punishment of the Crime of Genocide (Provisional Measures Order) International Court of Justice

Reports 1993, p. 325, Dissenting Opinion, para. 82; During the Iraq annexation of Kuwait, the United Nations

Security Council decided “[n]ot to recognize any regime set up by the occupying Power” either directly or

indirectly, and that the annexation “under any form and whatever pretext has no legal validity, and is considered

null and void”. United Nations Security Council resolution 661 (2 August 1990) UN Doc/S/RES/661; United

Nations Security Council resolution 662 (9 August 1990) UN Doc S/RES/662.

237

Professor Emeritus Michael Bothe, “Expert Opinion Relating to the Conduct of Prolonged Occupation in the

Occupied Palestinian Territory” (June 2017) p. 7.

- 40 -

illegality but not [for] providing a complete treatment of the matter”.

238

Nonetheless, such

prohibited acts of aggression are illegal acts and may invalidate the legality of an occupation

as a continuing act of self-defence. This section examines annexation of occupied territory as

indicative of a disproportionate use of force for self-defence ad bellum.

239

2.1. The categorical prohibition of annexation of occupied territory as an illegal use of force

Today, there is a clear prohibition on annexation resulting from a use of force. The Brussels

Code (1874) and the Oxford Manual on the Laws of War on Land (1880) stress the temporary

nature of occupation – “the authority of the legitimate Power being suspended”

240

– and drop

all reference to annexationist practices.

241

Specifically, the Friendly Relations Declaration

(1970)

242

provides that “[n]o territorial acquisition resulting from the threat or use of force shall

be recognized as legal”.

243

Similarly, Article 5(3) of General Assembly resolution 3314 on the

Definition of Aggression

244

provides that “no territorial acquisition or special advantage

resulting from aggression is or shall be recognized as lawful”, while the preamble reaffirms

that “the territory of a State shall not be violated by being the object, even temporarily, of

military occupation or of other measures of force taken by another State in contravention of

the Charter, and … it shall not be the object of acquisition by another State resulting from such

measures or the threat thereof”.

Such is the categorical and absolute prohibition on annexation, that its inclusion as a wrongful

act under the Geneva Conventions was hotly debated by plenipotentiaries at the preparatory

meetings: annexation was so obviously illegal its inclusion was considered by many to be

superfluous.

245

Initially, draft Article 43 [now Article 47] in the Final Record of the Diplomatic

Conference of Geneva of 1949, volume III, on the inviolability of rights, did not contain any

238

Ralph Wilde, “Is the Israeli occupation of the Palestinian West Bank (including East Jerusalem) and Gaza

‘Legal’ or ‘Illegal’ in International Law?” Legal Opinion, University College London (29 November 2022) p.

33, para. 59.

239

It is worth noting that, in a separate opinion of Vice-President Yusuf in Certain Activities Carried Out by

Nicaragua in the Border Area (Costa Rica v. Nicaragua), a contentious case in which Costa Rica argued that

Nicaraguan armed forces were occupying Costa Rican territory, considerations of inviolability of territorial

integrity could be considered separately from use of force arguments. For example, a State might “violate the

customary rule on territorial inviolability without breaching the prohibition on the use of force”. International

Court of Justice, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

⎯

Question of Compensation (2 February 2018) International Court of Justice Reports 2015 p. 665, Separate Opinion

of Vice-President Yusuf, para. 4.

240

Project of an International Declaration concerning the Laws and Customs of War (Brussels) (27 August 1874)

art. 2.

241

Instructions for the Government of Armies of the United States in the Field (Lieber Code) (24 April 1863) art.

33. “It is no longer considered lawful – on the contrary, it is held to be a serious breach of the law of war – to

force the subjects of the enemy into the service of the victorious government, except the latter should proclaim,

after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district,

or place permanently as its own and make it a portion of its own country.”

242

United Nations General Assembly resolution 2625 (XXV) (24 October 1970) Declaration on Principles of

International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter

of the United Nations.

243

Ibid.

244

United Nations General Assembly resolution 3314 (XXIX) (14 December 1974) Definition of Aggression.

245

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (ICRC 1958) p. 276; Final Record of the Diplomatic Conference

of Geneva of 1949, volume 2, Section A, p. 774. At the forty-third meeting, on 8 July 1949, Colonel Du

Pasquier (Switzerland), Rapporteur, noted that a reference to annexation contained in the French draft had been

omitted because “certain delegations had observed that a unilateral annexation in time of war was inadmissible

in international law”.

- 41 -

specific reference to annexation.

246

However, the text agreed upon at the Diplomatic

Conference held at Geneva from 21 April to 12 August 1949 concluded the section on protected

persons with references to whole or partial annexation.

247

At the 16

meeting, on 16 May 1949,

Mr. Meulblok (Netherlands) recommended the omission of the word annexation, “since

annexation in time of war was not recognised”, suggesting instead an indirect reference to

“infraction au statut”.

248

In the meeting, Mr. De Geouffre de la Pradelle (Monaco) supported

the proposal of the Netherlands, suggesting that “[c]ertain theories tended to confuse

occupation with annexation, but such theories should be repudiated as contrary to positive

international law. It was essential that no text should be adopted which might throw doubt on

the legality of occupation”.

249

However, at the 43

meeting, on 8 July 1949, Mr. Pashkov

(Union of Soviet Socialist Republics) argued that the removal of the word annexation from the

English version of the text had been a mistake. He recommended that it be restored to provide

the occupied population with additional safeguards.

250

Mr. Clattenburg (United States of

America) similarly made clear that it was “immaterial” whether a specific reference to

annexation was included, as the draft applied to all cases of occupations.

251

As such, Article 47 ensures that the population is protected against demographic manipulation

and the status of the territory is maintained intact.

252

This protection is similarly borne out in

Article 4 of Additional Protocol 1 (1977) which provides that “[n]either the occupation of a

territory nor the application of the Conventions and this Protocol shall affect the legal status of

the territory in question”.

253

Commentary to Article 6 explains further that “[t]he Convention

could only cease to apply as the result of a political act, such as the annexation of the territory

or its incorporation in a federation, and then only if the political act in question had been

recognized and accepted by the community of States; if it were not so recognized and accepted,

the provisions of the Convention must continue to be applied”.

254

Commentary to Article 2 of

the Fourth Geneva Convention explains that the de facto spirit and character of the Convention

intends to counter the evasion of States’ obligations, as “the temporary disappearance of

sovereign States as a result of annexation or capitulation, has been put forward as a pretext for

not observing one or other of the humanitarian Conventions”.

255

In summation, the annexation of occupied territory which has fallen into debellation is

absolutely prohibited. As Boutruch and Sassòli observe, “[s]uch prohibition [on annexation]

is, however, an issue of jus ad bellum. Jus in bello simply continues to apply despite such

246

Rather, draft Article 43 stated: “Protected persons who may find themselves in occupied territories cannot in

any case or in any manner whatsoever be deprived of the benefit of the present Convention, either by virtue of

changes introduced as the result of the occupation into the institutions or government of the said territories, or by

arrangements which may be concluded between the authorities of the occupied territories, and the occupying

Power. Conversely, no provision in this Convention is intended to confer upon protected persons, including

internees in occupied territories, a right to standards of living higher than those prevailing before the occupation

began.” Final Record of the Diplomatic Conference of Geneva of 1949, volume 3, p. 129.

247

Final Record of the Diplomatic Conference of Geneva of 1949, volume 1, p. 306.

248

Final Record of the Diplomatic Conference of Geneva of 1949, volume 2, Section A, p. 663.

249

Ibid.

250

Ibid., p. 774.

251

Ibid.

252

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the Protection

of Civilian Persons in Time of War (ICRC 1958) pp. 275–76; Orna Ben-Naftali, Aeyal M. Gross and Keren

Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territory” Berkeley J. Int’l L., vol. 23 (2005) p.

551; See also Article 4 of Additional Protocol I (1977): “Neither the occupation of a territory nor the application

of the Conventions and this Protocol shall affect the legal status of the territory in question”.

253

Additional Protocol I (1977) art. 4; ICRC “Occupation and other forms of Administration of Foreign Territory”,

Expert Meeting (March 2021) p. 43.

254

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the Protection

of Civilian Persons in Time of War (ICRC 1958) p. 63.

255

Ibid., p. 18.

- 42 -

changes and such changes do not justify violations of its provisions – including those on the

admissibility of legislative changes”.

256

Further, the inclusion of annexation during occupation,

as discussed in the Diplomatic Conference of Geneva, does not in any way obviate the

continuation of the belligerent occupation, which continues regardless of legality, on the facts.

However, as Bothe asserts, “taking advantage of the situation for the purpose of annexation is

not covered by the justification as self-defence. It would go beyond the limits of what is allowed

as self-defence, namely measures which are militarily necessary and proportionate means of

self-protection”.

257

2.2 Factoring de facto annexation into a proportionality analysis

Territorial acquisition through de facto annexation may be factored into a proportionality

analysis to establish whether the occupying Power’s self-defence has crossed red lines into

illegality. In the Wall advisory opinion, for example, the International Court of Justice

considered that “the construction of the wall and its associated régime create a ‘fait accompli’

on the ground that could well become permanent, in which case, and notwithstanding the

formal characterization of the wall by Israel, it would be tantamount to de facto annexation”.

258

Similarly, Vice-President Ammoun, in the South West Africa advisory opinion, referred to the

“de facto annexation of the territory of Namibia”; and likewise, dissenting Judge Tanaka

warned that “[t]he Respondent may find it difficult to defend itself against the charge of

possessing the avowed intention of piece-meal incorporation amounting to de facto

annexation”.

259

Even economic integration, such as customs unions, may be evidence of de facto annexation.

For example, in Customs Regime between Germany and Austria (Protocol of March 19th,

1931), the Permanent Court of International Justice examined the prohibitions on Austria under

Article 88 of the Treaty of Saint Germain,

260

which prevented acts of alienation of

independence and acts exposing Austrian independence to danger.

261

The Permanent Court of

International Justice elucidated that “alienation” must be understood as “any voluntary act by

the Austrian State which would cause it to lose its independence or which would modify its

independence in that its sovereign will would be subordinated to the will of another Power or

particular group of Powers, or would even be replaced by such will”.

262

The ruling contends

that such prohibitions include undertaking obligations that would alienate economic or

financial independence.

263

As such, the Permanent Court of International Justice found that “a

regime established between Germany and Austria, on the basis and within the limits of the

256

Dr. Théo Boutruche and Professor Marco Sassòli, “Expert Opinion on the Occupier’s Legislative Power over

an Occupied Territory Under IHL in Light of Israel’s On-going Occupation”, (June 2017) p. 10.

257

Ibid., p. 8.

258

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 121.

259

Separate Opinion of Vice-President Ammoun, [re Advisory opinion of 21 June 1971] International Court of

Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) International Court of Justice

Reports 16 (1971) p. 88; Dissenting Opinion of Judge Tanaka, [re Judgment of 18 July 1966] Ethiopia v. South

Africa (Case Concerning South West Africa) p. 317.

260

Treaty of Peace concluded at Saint-Germain (10 September 1919) art. 88. “The independence of Austria is

inalienable otherwise than with the consent of the Council of the League of Nations. Consequently, Austria

undertakes in the absence of the consent of the said Council to abstain from any act which might directly or

indirectly or by any means whatever compromise her independence, particularly, and until her admission to

membership of the League of Nations, by participation in the affairs of another Power.”

261

Customs regime between Germany and Austria (Protocol of March 19

, 1931) Permanent Court of

International Justice Series A/B, No 41 (1931). See also Opinion of Judge Anzilotti, p. 63.

262

Ibid., para. 27.

263

Ibid., para. 47.

- 43 -

principles laid down by the Protocol of March 19

, 1931, would not be compatible with

Protocol No. I signed at Geneva on October 4th, 1922”.

264

In 1947, the United Nations War Crimes Commission established to examine war crimes

during World War II, including war crimes committed in Ethiopia during the Italian-

Abyssinian war, explained that “the annexation of Ethiopia by Italy was recognised by most

Governments de jure and by all the Governments de facto”.

265

In Sovfracht (V/O) v. Van Udens

Scheepvaart en Agentuur Maatschappij (N.V Gebr) the UK House of Lords established the

threshold for determining when occupied territory can be considered subjugated: “It must be

held under the dominion and control of the enemy for a period sufficient to give the occupation

a settled and relatedly permanent character and to show the intention to keep it. I do not think

that the cases require that there should be formal acts, such as a cession by treaty or a public

declaration of annexation”.

266

The annexation is “decided as a question of fact with due regard

to the character, purpose and intention of the occupation and the degree of dominion

exercised”.

267

Meanwhile, former United Nations Special Rapporteur Michael Lynk has proposed a four-part

test for establishing if territory has been de facto annexed, including ascertaining the occupying

Power’s effective control, its exercises of sovereignty, its expressions of intent and its refusal

to be directed by international law.

268

Accordingly, this study argues that acts of de facto

annexation (with or without acts of de jure annexation) may be considered as acts occurring as

part of an unlawful acquisition of territory by force, and further as a breach of the necessity

and proportionality requirements for a continuing use of force in self-defence, as well as an

intent to administer the territory in denial of the right of self-determination.

3. Belligerent occupation denying the exercise of the right of self-determination

The occupying Power’s acts in breach of peremptory norms of international law, including the

denial of self-determination, may be evidence of a breach of necessity and proportionality,

rendering the occupation an unlawful act of self-defence under the United Nations Charter.

That prolonged occupation breaches the right of occupied peoples to self-determination has

264

Ibid., para. 65.

265

United Nations War Crimes Commission, Submission of Cases by Ethiopia, Commissions Jurisdiction over

Crimes Committed in Ethiopia (10 February 1947) para. 5.

266

England, House of Lords, Sovfracht (V/O) v. Van Udens Scheepvaart en Agentuur Maatschappij (N.V Gebr)

International Law Reports, vol. 10 (3 December 1942) Case No. 165.

267

Ibid. Later, in Anglo-International Bank Ltd, the Court altered the test previously laid down in Sovfracht (V/O),

due to the difficulty in establishing the intention of the occupying Power to “keep” the occupied territory. Rather,

the test for trading with corporations of “enemy character” should be whether the occupying Power intends to

accrue “an advantage” to himself. For the Court, “[s]uch an advantage may accrue if the occupation is of a

character which enables the enemy to deal with the inhabitants of the occupied country and their civil rights in

such a way as to secure profit to himself, whatever the ultimate intentions as to the future of the occupied country

may be”. England Court of Appeal, Anglo-International Bank Ltd, International Law Reports, vol. 10 (3 June

1943) Lord Greene M.R.; Luxmore and Goddard, L.JJ, pp. 524–526.

268

“Effective control: The state is in effective control of territory that it forcibly acquired from another state;

Exercises of sovereignty: The state has taken active measures that are consistent with permanency and a sovereign

claim over parts or all of the territory or through prohibited changes to local legislation, including the application

of its domestic laws to the territory, demographic transformation and/or population transfer, the prolonged

duration of the occupation and/or the granting of citizenship; Expressions of Intent: This would include statements

by leading political leaders and/or state institutions indicating, or advocating for, the permanent annexation of

parts or all of the occupied territory; International Law and Direction: “The state has refused to accept the

application of international law, including the laws of occupation, to the territory and/or is failing to comply with

the direction of the international community respecting the present and future status of the territory.” UNHCR

“Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since

1967”, (22 October 2018) A/73/45717, para. 31.

- 44 -

been posited by numerous international law scholars, including Antonio Cassese, who argues

that “self-determination is violated whenever there is a … belligerent occupation of a foreign

country, except where the occupation … is of a minimal duration”.

269

Bothe suggests that “[i]f

the occupying power makes it impossible for a population to exercise this right [of self-

determination] by deciding its own system of government and, thus, its own political fate, this

amounts to a deprivation of that right”.

270

Likewise, Ben-Naftali et al suggest that a belligerent

occupation should end within a reasonable time, which can be deduced by examination of the

purpose, nature and circumstances of the occupation.

271

Nicolosi argues that “prolonged

occupation and its maintenance in violation of international law can represent a specific ground

for illegality, as it undermines the principles of inalienability of sovereignty and territorial

integrity”.

272

In particular, the Declaration on Principles of International Law concerning Friendly Relations

and Cooperation among States in accordance with the United Nations Charter, 1970, provides

that “subjection of peoples to alien subjugation, domination and exploitation constitutes a

violation of the principle [of self-determination]”.

273

Specifically, Article 49 of the Fourth

Geneva Convention protects against the colonization of occupied territory, providing that

“[t]he occupying Power shall not deport or transfer parts of its own civilian population into the

territory it occupies”.

274

Commentary to the Fourth Geneva Convention conveys how the

provision “is intended to prevent a practice adopted during the Second World War by certain

Powers, which transferred portions of their own population into occupied territory for political

and racial reasons or in order, as they claimed, to colonize those territories. Such transfers

worsened the economic situation of the native population and endangered their separate

existence as a race”.

275

For example, the Nuremberg Tribunal described the practices of transfer

into and Germanization of occupied territories whereby “[t]he defendants endeavored to

obliterate the former national character of these territories. In pursuance of these plans and

endeavors, the defendants forcibly deported inhabitants who were predominantly non-German

and introduced thousands of German colonists”. Meanwhile, “the demand for land was to be

the justification for the acquisition of ‘living space’

at the expense of other nations”, a practice

commonly referred to in German as Lebensraum

276

and understood to mean “territory claimed

by a nation or State as being necessary to its growth or survival”.

277

Such practices offend

against the duty “[t]o bring a speedy end to colonialism” and in doing so, violate the

fundamental right to self-determination.

278

Comparative practices of settler transfer in and

269

Antonio Cassese, Self-Determination of Peoples: A Legal Reprisal (CUP 1995) 99.

270

Professor Emeritus Michael Bothe, “Expert Opinion Relating to the Conduct of Prolonged Occupation in the

Occupied Palestinian Territory” (June 2017) p. 8.

271

Orna Ben-Naftali, Aeyal M.Gross and Keren Michaeli, “Illegal Occupation: Framing the Occupied

Palestinian Territory” Berkeley J. Int’l L., vol. 23 (2005) pp. 551, 600.

272

Salvatore Fabio Nicolosi, “The Law of Military Occupation and the Role of De Jure and De Facto

Sovereignty” XXXI Polish Yearbook of International Law (2011) pp. 165, 184.

273

United Nations General Assembly resolution 2625 (XXV) (24 October 1970) Declaration on Principles of

International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter

of the United Nations.

274

Fourth Geneva Convention (1949), art. 49; Similarly, the ICRC considers settlements in violation of Article

27 of the Fourth Geneva Convention. 24

International Conference of the Red Cross, Res. III, Application of

the Fourth Geneva Convention of 12 August 1949; The act is similarly prohibited under Rule 130 of the ICRC

customary international law study and is a grave breach under Article 85(4)(a) of Additional Protocol 1 (1977).

275

International Committee of the Red Cross, Commentary: Fourth Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (ICRC 1958) Article 49, p. 281.

276

Michael Loughridge, Sándor Hervey, Ian Higgins, Thinking German Translation (Routledge 2006) p. 36.

277

Trial of the Major War Criminals before International Military Tribunal, volume I, p. 175.

278

United Nations General Assembly resolution 2625 (XXV) (24 October 1970) Declaration on Principles of

International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter

- 45 -

forced displacement of the occupied Palestinian population, to obliterate the national character

of occupied Palestine, may be similarly indicative of prohibited colonial practices, which deny

the right of self-determination.

Here Israel’s practices and policies of settler transfer and settlement construction in occupied

Palestine can be examined, to ascertain whether Israel’s actions are denying the exercise of the

right of the Palestinian people to self-determination and full independence as a sovereign

nation. The denial of external self-determination and sovereignty of the occupied people,

alongside other cumulative international law violations and breaches of peremptory norms of

international law, may be indicative of an occupation in breach of the principles of self-defence

for a legitimate use of force, rendering the occupation illegal.

4. Belligerent occupation breaching the prohibition on apartheid

A belligerent occupation which is administered in a manner that entrenches and maintains a

legal regime of segregation breaches the prohibition on racial discrimination and apartheid, a

peremptory norm of international law, and may accordingly be considered an act indicative of

a breach of the principles of necessity and proportionality for self-defence under Article 51 of

the United Nations Charter.

The prohibition against apartheid is a peremptory norm of international law.

279

Under the

Convention on the Elimination of Racial Discrimination, States “particularly condemn racial

segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this

nature in territories under their jurisdiction”.

280

The International Convention on the

Suppression and Punishment of the Crime of Apartheid (hereafter the Apartheid Convention),

defines the crime of apartheid as inhuman acts including:

similar policies and practices of racial segregation and discrimination as practised in

southern Africa … committed for the purpose of establishing and maintaining

domination by one racial group of persons over any other racial group of persons and

systematically oppressing them.

281

The definition of apartheid in the Apartheid Convention is declaratory of customary

international law and therefore binding on all States. Article 7(2)(h) of the Rome Statute defines

the crime against humanity of apartheid as meaning “inhumane acts … committed in the

context of an institutionalized regime of systematic oppression and domination by one racial

group over any other racial group or groups and committed with the intention of maintaining

that regime”.

282

The main precedent against the application of an apartheid regime in occupied territory derives

from the South West Africa advisory opinion. There, South Africa’s application of a

discriminatory apartheid regime to Namibia, a Mandate territory, was rejected by the

International Court of Justice, which stated: “There can be no excuse in the case of South West

of the United Nations; Further, Additional Protocol I (1977), art. 1(4), specifically covers situations of “armed

conflict in which people are fighting against colonial domination and alien occupation and against racist regimes

in the exercise of their right of self-determination”.

279

Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), p. 112,

para. 4.

280

International Convention on the Elimination of Racial Discrimination (1969), art. 3.

281

United Nations General Assembly, International Convention on the Suppression and Punishment of the

Crime of Apartheid, (30 November 1973) A/RES/3068(XXVIII), art. 2.

282

Rome Statue of the International Criminal Court (2002), art. 7(2)(h).

- 46 -

Africa for the application of the policy of apartheid, so far as the White population are

concerned”.

283

Similarly, Judge Castro opined that “in applying the laws of apartheid in South

West Africa (Namibia), South Africa is in breach of its duties as the mandatory Power; it is not

permissible to administer an entrusted territory in a manner contrary to the purposes and

principles of the Charter”.

284

Judge Padilla Nervo recalled the relevant General Assembly

resolutions, detailing that:

the rules and standards which the Mandatory by its policy of apartheid contravenes, in

violation of its obligations under the Mandate, [obligations which are not dormant at

all], but alive and in action, as are equally well alive and not dormant the rights of the

peoples of the Territory who are the beneficiaries of such obligations.

285

Importantly, Judge Padilla Nervo concludes that on this basis “the power of administration and

legislation could not be legitimately exercised by methods like apartheid which run contrary to

the aims, principles and obligations stated in Article 22 of the Covenant”.

286

It is clear that where an occupying Power applies an apartheid regime in occupied territory,

this is an unlawful exercise of administration and legislation. Such acts may be indicative of a

disproportionate use of force in self-defence. Further, this section concludes that the occupying

Power’s breach of the prohibition on annexation, denial of the exercise of the right of self-

determination, and application of an apartheid regime, may together be indicative of a mala

fide administration of the occupied territory. The next section will examine the consequent

effects of a mala fide illegal occupation on the exercise of the external right to self-

determination of peoples.

C. Unlawful occupation in breach of the right of external self-determination

As general practice, all belligerent occupations operate under the principle of the temporary

suspension of sovereignty of the occupied State.

287

Today, these sovereign rights are

understood to remain vested in the occupied people.

288

General Assembly resolution 43/177,

for example, affirmed “the need to enable the Palestinian people to exercise their sovereignty

over their territory occupied in 1967”.

289

Wilde suggests that “it is necessary, in order to invoke

international law to challenge the legitimacy of the occupation, to make a case on the basis of

both the law on the use of force and the law of self-determination”.

290

Once it has been

established that a belligerent occupation is unlawful, that occupation’s continued

administration “necessarily negatively affects the enjoyment of the self-determination right of

the population affected”.

291

Here the occupying Power, rather than administering the territory

bona fide temporarily under a suspension of sovereignty, instead administers the territory mala

fide to prevent the exercise of the right of external self-determination and sovereignty. In

283

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports, vol. 16 (1971) p. 63.

284

Ibid., Separate Opinion of Judge De Castro, p. 217.

285

Ibid., Separate Opinion of Judge Padilla Nervo, p. 112.

286

Ibid., p. 125.

287

Article 2 of the Brussels Declaration, describing “[t]he authority of the legitimate Power being suspended

and having in fact passed into the hands of the occupants”.

288

United Nations General Assembly resolution 67/19 (2012). “[T]he Palestinian people have the right to self-

determination and to sovereignty over their territory.”

289

United Nations General Assembly resolution 43/177 (15 December 1988), para. 2.

290

Ralph Wilde, “Using the Master’s Tools to Dismantle the Master’s House: International Law and Palestinian

Liberation” Palestine Yearbook of International Law, vol. 22 (2019–2020) p. 42.

291

Ibid.

- 47 -

Mandate territories, like Palestine, this means denying the exercise of its right to an

independent State. Such acts constitute a stand-alone breach of the right of self-determination,

a peremptory norm of international law, and additionally, may be considered ultra vires the

principles of necessity and proportionality for self-defence.

1. Using force to deny the exercise of the right of external self-determination

Article 1(2) of the United Nations Charter provides for the right of self-determination as a

founding principle, to “develop friendly relations among nations based on respect for the

principle of equal rights and self-determination of peoples”. Article 55 of the United Nations

Charter provides for the goal of creating the conditions for “peaceful and friendly relations

among nations based on respect for the principle of equal rights and self-determination of

peoples”. Article 73 recognizes the interests of inhabitants of non-self-governing territories as

a matter of “sacred trust”.

292

Correspondingly, Common Article 1 of the International Covenant

on Civil and Political Rights and the International Covenant on Economic, Social and Cultural

Rights reaffirms the right of self-determination, obliging States parties “to promote the

realization of that right and to respect it, in conformity with the provisions of the United Nations

Charter”.

293

By 1976, the subcommission of the International Law Commission considered the principle of

self-determination a jus cogens norm of international law.

294

The right of self-determination

has been recognized by the International Court of Justice as an erga omnes right in general

international law.

295

For peoples under colonial rule, the International Court of Justice in

Frontier Dispute Case (Burkina Faso/Republic of Mali) outlined the application of the

principle of uti possidetis, which requires “the respecting of colonial frontiers, and to take

account of it in the interpretation of the principle of self-determination of peoples”.

296

Such

continued considerations would undoubtedly apply to the colonial frontiers of the British

Mandate in Palestine. Drawing on the history of the past few decades, the Separate Opinion of

Judge ad hoc Luchaire explained that “the frontiers of an independent State emerging from

colonization may differ from the frontiers of the colony which it replaces, and this may actually

result from the exercise of the right of self-determination”.

297

As such, the colonial process can

only be considered finally over once the right of self-determination has been exercised by the

inhabitants of the colony.

298

292

“Members of the United Nations which have or assume responsibilities for the administration of territories

whose peoples have not yet attained a full measure of self-government recognize the principle that the interests

of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the

utmost, within the system of international peace and security established by the present Charter, the well-being

of the inhabitants of these territories.” Article 73, Charter of the United Nations (1945).

293

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports, vol. 136 (2004) para. 88.

294

UNHCR “Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial

and Alien Domination to Self-Determination, Study Prepared by Mr. Hector Gros Espiell, Special Rapporteur”,

(20 June 1978) E/CN.4/Sub.2/405(vol.I) para. 78.

295

International Court of Justice, East Timor (Portugal v. Australia), (Judgment) International Court of Justice

Reports 1995, p. 90, para. 29.

296

International Court of Justice, Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali)

(Judgment) International Court of Justice Reports 1986 pp. 554, 567, para. 25.

297

Ibid., Separate Opinion of Judge Luchaire, p. 653.

298

Ibid., p. 653.

- 48 -

The use of force to prevent the exercise of self-determination of peoples who are subject to

alien subjugation, domination and exploitation is unlawful.

299

The final Commentaries of the

International Law Commission on State Responsibility explicitly reference the prohibition of

both formal and implied acts of the recognition of an “attempted acquisition of sovereignty

over territory through the denial of the right of self-determination of peoples”.

300

specifically, the Declaration on Friendly Relations prohibits the use of force, providing that

“[e]very State has the duty to refrain from any forcible action which deprives peoples referred

to in the elaboration of the principle of equal rights and self-determination of their right to self-

determination and freedom and independence”.

301

In this vein, South Africa’s occupation of

Mandated territory in denial of the exercise of the right of self-determination of the Namibian

people was found by the International Court of Justice to be illegal.

2. South Africa’s illegal occupation of Namibia (South West Africa)

In accordance with the Treaty of Versailles, Namibia, a German colony, was entrusted to the

administration of South Africa under the supervision of the Council of the League of

Nations.

302

A number of advisory opinions pronounced on the legal relationship of South

Africa’s administration under the supervision of the United Nations,

303

including South

Africa’s failure to submit reports and facilitate United Nations country visits.

304

Denouncing

South Africa’s failure “to fulfil its obligations in respect of the administration of Mandated

Territory”, the General Assembly formally ended the Mandate in 1966, recognizing South

West Africa (later renamed Namibia) as a territory having international status until its full

independence is recognized.

305

However, given South Africa’s failure to withdraw from the

Territory of Namibia, Security Council resolution 264 (1969) called upon the Government of

South Africa “to withdraw immediately its administration from the Territory”.

306

Once the

Mandate to administer the territory was revoked by the United Nations, South Africa was

considered to be “occupying [Namibia’s] territory without title”.

307

Accordingly, this placed

Member States of the United Nations under an obligation to “abstain from entering into treaty

relations with South Africa in all cases in which the Government of South Africa purports to

act on behalf of or concerning Namibia”.

308

299

United Nations General Assembly, “Declaration on Principles of International Law Friendly Relations and

Co-Operation Among States in Accordance with the Charter of the United Nations”, A/RES/2625(XXV) (24

October 1970).

300

International Law Commission, “Report of the International Law Commission on the work of its fifty-third

session, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, (2001) p.

114.

301

United Nations General Assembly, “Declaration on Principles of International Law Friendly Relations and

Co-Operation Among States in Accordance with the Charter of the United Nations”, A/RES/2625(XXV) (24

October 1970) para. 1.

302

Julio Faundez, “Namibia: The Relevance of International Law” Third World Quarterly vol. 8(2) (1986) 540,

541.

303

International Court of Justice, Voting Procedure on Questions relating to Reports and Petitions Concerning

the Territory of South-West Africa, (Advisory Opinion) International Court of Justice Reports 1955 (7 June

1955) p 66; International Court of Justice, Admissibility of Hearings of Petitioners by the Committee on South

West Africa, (Advisory Opinion) International Court of Justice Reports 1956 (1 June 1956) p. 22.

304

United Nations General Assembly resolution 1142 (XII) 1957.

305

United Nations General Assembly resolution 2145 (XXI) Question of South West Africa (27 October 1966)

para. 1; See also United Nations Security Council resolution 246 (1968) (South-West Africa).

306

United Nations Security Council resolution 264 (1969), para. 3.

307

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion)

International Court of Justice Reports 1971, p. 54, para. 118.

308

Ibid., p. 55.

- 49 -

The International Court of Justice has also examined the nature of South Africa’s occupation

of Namibia after the termination of the Mandate, and whether this relationship constituted a

continuing annexation. In its 1950 advisory opinion on the International Status of South West

Africa, the International Court of Justice outlined two principles of paramount importance

underpinning the Mandate system: (1) the principle of non-annexation; and (2) the principle

that the well-being and development of such peoples form “a sacred trust of civilization”.

309

While the Court admitted that previously there had been “a strong tendency to annex former

enemy colonial territories”, the outcome of negotiations and the adoption of Article 22 of the

Covenant of the League of Nations “was a rejection of the notion of annexation”.

310

Instead,

South Africa’s continued presence in Namibia in the aftermath of the Mandate was

characterized as a “continuing occupation”, with the Security Council declaring that “the

continued presence of South Africa in Namibia is illegal and contrary to the principles of the

Charter”.

311

The International Court of Justice further described the Mandate territory as being a “sacred

trust”: “[t]he Mandate was created in the interest of the inhabitants of the territory, and of

humanity in general, as an international institution with an international object – a sacred trust

of civilization”.

312

As Judge Padilla Nervo stated, “[t]he sacred trust is not only a moral idea,

it has also a legal character and significance; it is in fact a legal principle”.

313

In the South West

Africa advisory opinion, the International Court of Justice noted that the United Nations

Charter expanded the concept of “sacred trust” to apply to “all territories whose peoples have

not yet attained a full measure of self-government” and accordingly embraced those territories

under a “colonial regime” who retained the right to self-determination.

314

As such, the

International Court of Justice concluded, “[t]hese developments leave little doubt that the

ultimate objective of the sacred trust” referred to in Article 22, paragraph 1, of the Covenant

of the League of Nations “was the self-determination … of the peoples concerned”.

315

Thus, the Mandate continues in force until the people come to full independence. In particular,

Article 80 of the League of Nations resolution (18 April 1946) governing the termination of

the League of Nations recognized the continuation of the administration of the territories in

accordance with the obligations of the respective Mandates.

316

The principal purpose of Article

80, according to Judge De Castro, “is to avoid any alteration of the rights of peoples subject to

mandate, directly or indirectly, in any manner whatsoever”.

317

As explained by Wright, “the

League, whose competence is defined by the Covenant, could not withdraw a territory from

309

International Court of Justice, International Status of South-West Africa, (Advisory Opinion) International

Court of Justice Reports 1950, p. 131.

310

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion)

International Court of Justice Reports 1971, p. 16, p. 42.

311

United Nations Security Council resolution 264 The Situation in Namibia (20 March 1969), para. 2; United

Nations Security Council resolution 276 (30 January 1970); See also A/RES/2403(XXIII), 16 December 1968.

312

International Court of Justice, International Status of South-West Africa, (Advisory Opinion) International

Court of Justice Reports 1950, p. 132.

313

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) Separate Opinion of Judge Padilla Nervo, p. 106.

314

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 31.

315

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 31, paras. 52–53.

316

Ibid., Separate Opinion of Judge Padilla Nervo, p. 109.

317

Ibid., Separate Opinion of Judge De Castro, p. 187.

- 50 -

the status of mandated territory unless through recognition that the conditions there defined no

longer exist in the territory”.

318

In addition, this would mean that the obligations of the

administration as a “sacred trust”, the obligations for securities for the performance of the trust

and the rights of the population could not be brought to an end with the liquidation of the

League, “as they did not depend on the existence of the League”.

319

Rather, Namibia remained

an international responsibility, possessing “a sui generis international status, not being under

the sovereignty of any State, and having been placed under the overall authority and protection

of the international community represented since 1946 by the United Nations”.

320

Accordingly,

as Judge Dillard explains, “the exercise of the power involved no invasion of national

sovereignty since it was focussed on a territory and a régime with an international status”.

321

The Court outlined its view that “the termination of the Mandate and the declaration of the

illegality of South Africa’s presence in Namibia are opposable to all States”, including non-

Member States of the United Nations, who are similarly bound by erga omnes obligations

322

“to refrain from lending any support or any form of assistance to South Africa with reference

to its occupation of Namibia”.

323

In particular, “they are under an obligation not to recognize

any right of South Africa to continue to administer the Mandate”.

324

Judge Padilla Nervo

opined that “[g]iven that the continued presence of the South African authorities in Namibia is

illegal, all the measures taken by them in the name of that Territory, or concerning that

Territory, after the cessation of the Mandate, are illegal and invalid”.

325

However, whereas South West Africa was mandated territory, held under occupation after the

termination of the Mandate, it can be distinguished from Palestine, which is mandated territory

held under belligerent occupation in the context of an international armed conflict. While South

Africa had been mandated to administer South West Africa, its continued presence after the

Mandate was terminated, amounted to an illegal occupation of territory ab initio. Nevertheless,

if the occupation is administered denying the exercise of the right of the people to external self-

determination, this may similarly be considered in breach of the “sacred trust”. Depending on

the circumstances giving rise to the breach of self-determination, the occupation could be

illegal ab initio, or at some point in the future.

A key takeaway from the precedent in South West Africa is that the Palestine Mandate, like the

Namibia Mandate, did not end on the occupation of the territory. Rather, an unlawful

occupation of Mandate territory further breaches the right of external self-determination,

including the right to an independent state, which continues as a sacred trust.

318

Wright, Mandates Under the League of Nations (1930) p. 440–441 quoted in International Court of Justice,

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) International Court of Justice

Reports 16 (1971) Separate Opinion of Judge Padilla Nervo, p. 108.

319

Ibid., p. 109 (italics in original).

320

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) Separate Opinion of Judge Padilla Nervo, p. 114.

321

Ibid., Separate Opinion of Judge Dillard, p. 163.

322

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) para. 126.

323

Ibid., para. 119

324

Ibid., Separate Opinion of Judge Petrén, p. 134.

325

Ibid., Separate Opinion of Judge Padilla Nervo, p. 118.

- 51 -

IV. Is there available evidence to support a finding that Israel’s

occupation has become illegal?

As previously outlined, occupations may become illegal on two grounds. First, an occupation

arising from an unlawful act of aggression is illegal ab initio. Second, a belligerent occupation

may become illegal where it operates in breach of the principles of immediacy, necessity and

proportionality for self-defence. Consequent to a finding of illegality, the continuing

administration of the occupied territory may further breach the right of external self-

determination and statehood of a people.

Taking each ground of illegality in turn, this section provides the factual evidence to support a

conclusion that Israel’s occupation of Palestine is illegal on the first two grounds, the

continuation of which breaches the right of the Palestinian people to self-determination.

A. Illegal occupation arising from an unlawful aggressive use of force

The first ground for illegality is met when a belligerent occupation arises from an unlawful use

of force and therefore amounts to an unlawful act of aggression in breach of the United Nations

Charter. This section examines the factual lead-up to the Six Day War in 1967, culminating in

Israel’s pre-emptive use of force against Egypt on 5 June 1967. Dispelling Israel’s arguments

pertaining to self-defence, the section concludes that Israel’s use of force constitutes an

unlawful act of aggression, and the resulting belligerent occupation of Palestinian territory was

accordingly unlawful ab initio.

1. Israel’s use of force against Egypt is an act of aggression

In 1967, following the presence of Egyptian troops in the Sinai and Egypt’s blocking of the

Straits of Tiran to Israeli vessels, Israel launched a military offensive on Egypt. On 5 June

1967, Israeli warplanes targeted Egyptian aircraft and air defences on the ground, Egyptian

positions in the Sinai and the Suez Canal, and the Jordanian and Syrian fronts.

326

In turn, Israel

argued in the Security Council debates that Egypt’s acts amounted to an armed attack, after

which Israel responded with military force in self-defence.

327

In the West Bank, Jordan argued

that its recourse to force was within the permissible “collective self-defence”, an exception

under Article 51 of the United Nations Charter, in response to Israel’s armed attack on Egypt

on 5 June 1967.

328

Having established that occupation may be considered an illegal act of

aggression jus ad bellum, this section will briefly examine whether the initial aggression in

1967 was an unlawful act, which would also taint the occupation with illegality ab initio.

Quigley, for example, argues that Israel’s invasion and subsequent occupation of Egyptian-

occupied Gaza and the Jordanian-occupied West Bank, including East Jerusalem, was an illegal

use of force. Quigley conducts an in-depth examination of the meeting records of the Security

Council in 1967 and highlights how countries such as Cyprus rejected Israel’s claims of self-

defence, finding “no evidence of Arab armed attack or invasion of the territory of Israel”.

329

particular, Zambia and Malaysia disregarded the possibility that pre-emptive strikes could be

326

Terry D. Gill, “The Temporal Dimensions of Self-Defence”, in International Law and Armed Conflict,

Exploring the Faultlines, Michael M. Schmitt and Jelena Jejic, eds. (Martinus Nijhoff Publishers 2007) p. 136.

327

Christine Gray, International Law and the Use of Force (OUP 2018) p. 171.

328

Allan Gerson, Israel, the West Bank, and International Law (Frank Cass 1978) p. 71.

329

United Nations General Assembly Official Records (29 June 1967) UN Doc. A/PV.1541, pp. 7–8.

- 52 -

brought within the remit of an “armed attack” as per Article 51.

330

The strongest critic of

Israel’s attack was the Soviet Union, which, in meetings on the draft resolution, stated, “The

entire world knows that Israel started an aggressive war”.

331

Although the draft resolution was

not adopted given the abstention of eleven Member States from the vote, none of the abstaining

States suggested that Egypt had committed an act of aggression.

On its website, Israel’s Ministry of Foreign Affairs openly describes the lead-up to Israel’s pre-

emptive strikes on Egypt:

On 22 May, in a move that constituted a casus belli [an act that justifies war], Egypt

closed the Straits of Tiran to Israeli shipping, cutting off Israel’s only route to Asia and

Iran, its main supplier of oil… As Yitzhak Rabin, then the IDF’s [Israeli Defense

Force’s] chief of staff, stated at the time, “I believe we could find ourselves in a situation

in which the existence of Israel is at great risk.” Invoking its inherent right of self-

defense, Israel preempted the inevitable attack, striking Egypt’s air force while its

planes were still on the ground.

332

However, the failure of the Security Council to adopt a resolution on aggression meant that the

subsequent occupation was not treated as an unlawful act of aggression.

Instead, debate has hinged on whether Israel’s use of force amounted to an act of anticipatory

self-defence.

333

While Member States did reflect on the possibility that Israel’s acts amounted

to anticipatory self-defence at the Security Council meetings in 1967, the premise of

anticipatory self-defence was rejected as inconsistent with the United Nations Charter.

334

this vein, Cassese warns that “the risks of abuse should lead us to interpret the construction of

Art. 51 very strictly and consider it as giving only very exceptional licence”.

335

That being said,

Israel did not invoke the right to strike based on anticipatory self-defence at the time.

336

Instead

Israel argued that it acted in actual self-defence against the Egyptian blockade to which this

assessment now turns.

330

John Quigley, “Israel’s Unlawful 1967 Invasion of Palestine”, in Prolonged Occupation and International

Law Israel and Palestine, Nada Kiswanson and Susan Power, eds. (Brill 2023).

331

“The entire world knows that Israel started an aggressive war. The United States of America and its allies

have not even mildly reprimanded Israel for this, but, in an attempt to support the Israel militarists in their

annexation designs, have been telling us at length that peace, if you please, would be endangered if Israel troops

were sent back to the positions they occupied before 5 June and if they left the Arab lands they now occupy.

These allegations are nothing less than absurd.” United Nations General Assembly 1548

Plenary Meeting Held

at Headquarters, New York, (Tuesday, 4 July 1967, at 4. P.m.) para. 14.

332

Israel Ministry of Foreign Affairs, “1967: The Six-Day War and the Historic Reunification of Jerusalem”

(2013).

333

Christine D. Gray, International Law and the Use of Force (OUP 2008) 161; James Crawford, The Creation

of States in International Law (OUP 2006) 171; Yoram Dinstein, War, Aggression and Self-Defence (CUP

2012) 192; Thomas M. Franck, “Who Killed Article 2(4)?” American Journal of International Law vol. 804

(1970); Even under the contentious Caroline anticipatory self-defence formula, which may not have survived the

UN Charter, this is reserved for acts of absolute military necessity that are “instant, overwhelming and leaving

no choice of means, and no moment for deliberation”. Michael Wood, “The Caroline Incident – 1837”, in The

Use of Force in International Law: A Case-Based Approach, Tom Ruys, Olivier Corten, Alexandra Hofer, eds.

(OUP 2018).

334

United Nations General Assembly Official Records (29 June 1967) UN Doc. A/PV.1541, page 7; United

Nations General Assembly Official Records (27 June 1967) UN Doc. A/PV.1538, p. 9.

335

Antonio Cassese, “Return to Westphalia? Considerations on the Gradual Erosion of the Charter System”, in

The Current Use of Legal Regulation of the Use of Force, Antonio Cassese, ed. (Martinus Nijhoff Publishers,

1986) p. 516.

336

Christine D. Gray, International Law and the Use of Force (OUP 2008) p. 161.

- 53 -

2. Israel’s armed attack as an act of self-defence against the Egyptian blockade

On 19 June 1967, Israel’s Minister for Foreign Affairs, Abba Eban, provided Israel’s

justification for using force to the General Assembly, stating that “[f]rom the moment at which

the blockade was imposed, active hostilities had commenced and Israel owed Egypt nothing of

her charter rights”.

337

However, Israel’s arguments that Egypt’s partial blockade of the Straits

of Tiran amounted to an armed attack for the purposes of Article 51 did not garner support at

the Security Council.

338

That being said, it is axiomatic that a blockade amounts to an act of

aggression under international law. Article 3(c) of the Definition of Aggression, adopted in

1974, includes as an act of aggression “[t]he blockade of the ports or coasts of a State by the

armed forces of another State”.

339

Although the customary status of the declaration has been

questioned,

340

it has since been imported verbatim into the definition of the crime of aggression

in the statute of the International Criminal Court.

341

While the law governing the establishment

of blockades is constitutive of customary international law, including the Paris Declaration

(1856) and the London Declaration (1909), there is no evidence prior to 1974 that blockades

were characterized as an act of aggression under customary international law.

342

As such,

Israel’s argument that it was responding to a blockade as an armed attack may be inconsistent

with the applicable law at that time.

More precisely, the Strait of Tiran belongs to Egypt, and the blockade of the Strait of Tiran

was essentially an Egyptian blockade on its own sea, as distinct from “the blockade of the ports

or coasts” of Israel.

343

Notably, as previously mentioned, Israel did not invoke the right to strike

based on anticipatory self-defence.

344

Dinstein proposes that, when all measures by Egypt were

taken together “in aggregate”, such as the closing of the Straits of Tiran, the removal of the

United Nations Emergency Force from the Gaza Strip and the Sinai Peninsula, and the presence

of armed forces on the Egyptian border, “Israel was entitled to self-defence as soon as

possible”.

345

Gerson correspondingly agrees that following the blockade, there was “no

assurance of a peaceful outcome once the escalation of threats had taken place – then the

decision for war had to be made”.

346

However, the month previous, in May 1967, a Russian delegation to Egypt warned Cairo of a

potential war instigated by Israel to topple the Syrian regime.

347

In fact, as early as August

1963, an Israeli order regarding Military Government in an Emergency outlined that the

“expected expansion trajectories” for the next war included the West Bank, the Sinai Peninsula

337

Reprinted in Allan Gerson, Israel, the West Bank, and International Law (Frank Cass 1978) p. 72.

338

See generally, John Quigley, The Six-Day War and Israeli Self-Defence (CUP 2013).

339

United Nations General Assembly resolution 3314 (XXIX) Definition of Aggression, art. 3(c).

340

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports 2005 (19 December 2005)

Separate Opinion Judge Kooijmans, para. 63.

341

Rome Statute of the International Criminal Court (2002) art. 8 bis.

342

Martin Fink, “The Ever-Existing ‘Crisis’ of the Law of Naval Warfare” No. 920–921, International Review

of the Red Cross (November 2022); Declaration Respecting Maritime Law, Paris, 16 April 1856; Declaration

concerning the Laws of Naval War, 208 Consol. T.S. 338 (1909).

343

Tom Ruys, “Armed Attack” and Article 51 of the UN Charter, Evolutions in Customary Law and Practice

(CUP 2010) p. 277.

344

Christine D. Gray, International Law and the Use of Force (OUP 2008) p. 161.

345

Yoram Dinstein, War, Aggression and Self-Defence (CUP 2012) p. 192; Thomas M. Franck, “Who Killed

Article 2(4)?” American Journal of International Law, vol. 804 (1970).

346

Allan Gerson, Israel, the West Bank, and International Law (Frank Cass 1978) p. 73.

347

Meron Medzini, Golda Meir: A Reference Guide to Her Life and Works (Rowman and Littlefield 2020) p.

15.

- 54 -

to the Suez Canal, the Syrian Heights to Damascus, and Lebanon to the Litani River.

348

The

question then arises: Was Egypt entitled to take special precautionary measures on its territory

in self-defence?

349

In Corfu Channel (Merits) (1949), the International Court of Justice

provided that preparatory measures could be taken by a State in consideration of self-defence,

and that Albania in this case was justified in taking special precautionary measures in its

territorial waters.

350

Schwarzenberger likewise concedes that “it is implied, and accords with

common sense, that Article 51 of the Charter permits preparation for self-defence or collective

defence”.

351

Terry D. Gill, drawing a distinction between a partial and full blockade, explains

that while in some cases a blockade may amount to an “armed attack”, Egypt’s partial blockade

did not seriously impact Israel’s economy or impact its air and sea communications in the

Mediterranean. It was clear, Gill argues, that no armed attack had been launched.

352

Meanwhile, Constantinou points out that at the time, Israel did not raise the issue of the

blockade as an act of aggression, but as a breach of convention obligations. In its view, the

question of self-defence was levelled against cross-border attacks.

353

3. Israel’s armed attack as an act of self-defence against border attacks

Israel’s second self-defence claim was that it had acted in response to Egyptian armoured

columns penetrating Israel’s borders. At an emergency session of the Security Council on the

morning of 5 June 1967, the representative of Israel charged that:

in the early hours of 5 June, Egyptian armoured columns had moved in an offensive

thrust against Israel’s borders while at the same time Egyptian planes from airfields in

Sinai had struck out towards Israel. Egyptian artillery in the Gaza Strip had shelled

several Israel villages in that area. Israel was acting in self-defence.

354

Similarly, at a special session of the General Assembly opened on 15 June 1967, Israel’s

representative broke down the self-defence arguments into two strands: first, that Israel acted

in self-defence in response to the Egyptian blockade; and second, that “[o]n 5 June 1967, when

Egyptian forces moved by air and land against Israel’s western coast and southern territory, the

choice for Israel was to live or to perish. For five days Israel employed armed force alone and

unaided in a just and righteous self-defence”.

355

Later Moshe Dayan, Israel’s Minister of

Defence, indicated in a press briefing that he “did not reply directly to the [who fired] the ‘first

348

Organisational Order – Military Government in an Emergency 10/63, (August 1963) (translated by Akevot);

See also “Organisation and Training of Military Government Headquarters for Control of Occupied Territories”,

(Akevot, June 1967).

349

International Court of Justice, Corfu Channel Case (United Kingdom v Albania) (Merits Judgment)

International Court of Justice Reports 1949 p.4 (9 April 1949) p. 29.

350

Ibid.

351

Schwarzenberger, International Courts, volume II, The Law of Armed Conflict (Stevens and Sons Limited

1968) p. 35.

352

Terry D. Gill, “The Temporal Dimension of Self-Defence: Anticipation, Pre-emption, Prevention and

Immediacy”, in Michael N Schmitt and Jelena Pejic, International Law and Armed Conflict: Exploring the

Faultlines, Essay’s in Honour of Yoram Dinstein (Martinus Nijhoff Publishers 2007) p. 138.

353

Avra Constantinou, The Right of Self-defence Under Customary International Law and Article 51 of the

United Nations Charter (Ant. N. Sakkoulas 2000) pp. 77–81.

354

Outbreak of Hostilities on 5 June 1967 and Consideration by the Security Council, Outbreak of Hostilities

and Adoption of First Cease-Fire Resolution on 6 June 1967, Yearbook of the United Nations (1967).

355

Consideration of the Middle East Situation by the General Assembly Consideration at First Part of Fifth

Emergency Special Session (17 June-5 July 1967). In this vein, Israel suggested that President Nasser’s

announced blockade of the Gulf of Aqaba and the Strait of Tiran to Israel ships was “an act which was by

definition an act of war and which was regarded by Israel as an attack justifying her acting in self-defence under

Article 51 of the United Nations Charter”.

- 55 -

shot’ question, but since they had already heard my views on the importance of initiative and

surprise in battle, they did not need to do much guessing”.

356

An Israeli Knesset Cabinet resolution dated from 4 June 1967, published some years later,

instructs Moshe Dayan and Prime Minister Eshkol to set an hour for the authorized invasion of

Egypt.

357

A ground and aerial assault was then scheduled for 7:45 a.m. Greenwich Mean Time

on 5 June 1967.

358

Meanwhile, the government decision to engage a pre-emptive strike stated

that:

[t]he armies of Egypt, Syria and Jordan are deployed for a multifront attack that

threatens Israel’s existence. It is therefore decided to launch a military strike aimed at

liberating Israel from encirclement and preventing assault by the United Arab

Command.

359

Two days later, on 7 June 1967, Israel’s Prime Minister Levi Eshkol was quoted in an interview

in the New York Times, recalling that once Egypt closed the Straits of Tiran and drew its troops

to the armistice line, Israel’s only issue was whether it would act “today or tomorrow”.

360

does not mention Egypt’s alleged shelling of the three Israeli villages.

361

Addressing the

Knesset the following week, on 12 June, Prime Minister Eshkol recounted:

In my statement to the Knesset on May 29, I informed you that our forces were “ready

and prepared to frustrate the enemy’s designs in all sectors and on all our borders” …

… The decisive moment came. Facing the movement of Egyptian forces to the Israeli

border, our forces went out to repulse the enemy’s aggression, and air and armoured

battles developed.

362

Quigley observes that after 7 June, “Israeli officials stopped mentioning any precipitating

military action by Egypt”, and by 1968 were invoking instead the argument of anticipatory

self-defence.

363

In his autobiography on the subject, Colonel Indar Jit Rikhye, Chief of Staff of

the United Nations Emergency Force, recalled details of a meeting he held with General Rabin

in Tel Aviv where Rabin explained:

[I]n a surprise attack, on 5

June the air force succeeded in destroying most of Egypt’s

air force on the ground before it could do any damage to Israeli troop concentrations

and especially its cities. His land offensive had been planned meticulously. Rabin chose

to open his offensive against the less populated areas of Khan Yunis and Rafah in the

Gaza Strip, with El Arish as the axis for his attack.

364

356

Moshe Dayan, Story of My Life (1976) 824; Robbie Sabel, International Law and the Arab Israeli Conflict

(CUP 2022) p. 182.

357

John Quigley, “The Six Day War – 1967”, in The Use of Force in International Law: A Case-Based

Approach, Tom Ruys, Olivier Corten, Alexandra Hofer, eds. (OUP 2018) p. 135.

358

Ibid.

359

Cited in Orna Ben-Naftali, Michael Sfard, Hedi Viterbo, The ABC of the OPT, A Legal Lexicon of the Israeli

Control over the Occupied Palestinian Territory (CUP 2018) p. 122.

360

Cited in John Quigley, “The Six Day War – 1967”, in The Use of Force in International Law, A Case-Based

Approach, Tom Ruys and Olivier Corten, eds. (OUP 2018) p. 133.

361

Ibid.

362

Prime Minister Eshkol Reviews Six Day War (12 June 1967).

363

Ibid., p. 134

364

Major General Indar Jit Rikhye, The Sinai Blunder, Withdrawal of the United Nations Emergency Force

Leading to the Six Day War of June 1967 (Routledge 1981) p. 143.

- 56 -

Rikhye further recounts, “[t]he Israelis, fully ready for a ground attack anyway, were able to

pretend that the Egyptian forces had attacked them first, and therefore, they launched a land

counteroffensive. It suited Israel not to mention that its air force was first to start the war”.

365

4. Subsequent international resolutions highlighting acts of aggression

Although a Russian-tabled resolution at an Emergency Special Session of the General

Assembly on 17 June was voted against, it is significant that no State considered Egypt legally

responsible for the hostilities.

366

However, a number of subsequent General Assembly

resolutions clearly consider Israel’s occupation to be illegal

367

and characterize the occupation

as a continuing act of aggression.

368

The preamble to General Assembly resolution 32/20

concerns Israel’s “illegal occupation” and “condemns Israel’s continued occupation of Arab

territories, in violation of the Charter of the United Nations, the principles of international law

and repeated resolutions of the United Nations”.

369

Specifically, the preamble to General

Assembly resolution 3414 provides that it is guided by the United Nations Charter and “those

principles of international law which prohibit the occupation or acquisition of territory by the

use of force and which consider any military occupation, however temporary, or any forcible

annexation of such territory, or part thereof, as an act of aggression”.

370

Likewise, the preamble

to General Assembly resolution 2799, concerned with Israel’s continued occupation since 5

June 1967, determined that:

the territory of a State shall not be the object of occupation or acquisition by another

State resulting from the threat or use of force, which is contrary to the Charter of the

United Nations and to the principles enshrined in Security Council resolution 242

(1967) as well as in the Declaration on the Strengthening of International Security

adopted by the General Assembly on 16 December 1970.

371

General Assembly resolution 37/135 on permanent sovereignty over national resources in the

occupied Palestinian and other Arab territories further reaffirms:

the right of the Palestinian and other Arab peoples subjected to Israeli aggression and

occupation to the restitution of, and full compensation for the exploitation, depletion

365

Ibid., p. 145.

366

John Quigley, “The Six Day War – 1967”, in The Use of Force in International Law, A Case-Based

Approach, Tom Ruys and Olivier Corten, eds. (OUP 2018) p. 136.

367

United Nations General Assembly resolutions dated from 1975 and 1976, and from 1977 to 1981, condemn

the “illegal occupation” of Arab territories.

368

United Nations General Assembly resolution 32/20 (25 November 1977), United Nations General Assembly

resolution 33/29 (7 December 1978), United Nations General Assembly resolution 34/70 (6 December 1979),

United Nations General Assembly resolution 35/122E (11 December 1980), United Nations General Assembly

resolution 35/207 (16 December 1980), United Nations General Assembly resolution 36/147E (16 December

1981).

369

United Nations General Assembly resolution 32/20 (25 November 1977), para. 1.

370

United Nations General Assembly resolution 3414 (XXX) (5 December 1975), preamble. Accordingly, the

resolution condemned the continued occupation of Arab territories in violation of the UN Charter and requested

that all States “desist from supplying Israel with any military or economic aid as long as it continues to occupy

Arab territories and deny the inalienable national rights of the Palestinian people”. The resolution called for the

intervention of the UN Security Council to work out a framework for “complete Israeli withdrawal from all the

occupied Arab territories”. United Nations General Assembly resolution 3414 (XXX) (5 December 1975),

paras. 2–4; United Nations General Assembly resolution 31/61 (9 December 1976), para. 5.

371

United Nations General Assembly resolution 2799 (13 December 1971).

- 57 -

and loss of and damages to, their natural, human and all other resources, wealth and

economic activities, and calls upon Israel to meet their just claims.

372

In summation, despite the absence of a clarifying Security Council or General Assembly

resolution at the time, there are reasonable grounds to consider that Israel struck Egyptian

forces first, in a pre-emptive strike amounting to an act of aggression. The consequent

belligerent occupation amounts to a use of force in breach of Article 51 of the United Nations

Charter, and an illegal occupation ab initio.

B. Israel’s administration of occupied Palestine breaches peremptory norms

There is clear evidence that Israel acted unlawfully jus ad bellum in its use of force against

Egypt in 1967. Nevertheless, this section assumes arguendo the validity of Israel’s apocryphal

self-defence argument, that Israel’s attack on Egypt was a legitimate response to an armed

attack, in the form of Egypt’s blockade of the Strait of Tiran.

373

This section will examine

whether Israel’s occupation, which may be lawful subsequent to a use of force in self-defence,

has concomitantly become illegal over time, thus failing the principles of immediacy, necessity

and proportionality. In doing so, this section provides a factual basis demonstrating how Israel

has breached the principles and rules of international humanitarian law and at least three key

peremptory norms of international law: (1) the prohibition on the acquisition of territory

through use of force; (2) the right to self-determination; and (3) the prohibition of racial

discrimination and apartheid. Such evidence indicates that the occupation is being administered

in breach of the principles of necessity and proportionality for a legitimate use of force in self-

defence, rendering the occupation illegal.

1. Jus contra bellum, prohibition of acquisition of territory by force

The section broadly examines the de jure annexation of Jerusalem; the de facto annexation of

settlements and the territory comprising Area C; and the planning, construction and expansion

of permanent settlements, as evidence that the occupation is being carried out in breach of

peremptory norms governing the non-acquisition of territory through use of force.

1.1 De jure annexation of Jerusalem

Notably, the western part of Jerusalem was purportedly annexed in 1949, having been held as

“Israel-occupied territory” until 1949.

374

Israel’s continued occupation of West Jerusalem

breaches the international regime of corpus separatum provided for in General Assembly

resolution 181 (III).

375

In 1967 Israel, similarly, forcibly seized Palestinian territory in East

372

United Nations General Assembly resolution 37/135 (17 December 1982), para. 4; See also United Nations

General Assembly resolution 32/161 (19 December 1977).

373

Julius Stone, Israel and Palestine, Assault on the Law of Nations (John Hopkins University Press 1981) p.

52.

374

“Jerusalem Declared Israel-Occupied City – Government Proclamation”, Israeli Ministry of Foreign Affairs

(12 August 1948).

375

United Nations General Assembly resolution 181 (29 November 1947); See also UN CEIRPP, DPR study,

“The Status of Jerusalem” (1981): “(a) During the period 1950–1967, despite the international acquiescence in

the division of the City of Jerusalem, the General Assembly continued to uphold the principle of the

internationalization of Jerusalem as a corpus separatum in terms of its resolutions 181 (II) and 194 (III).

(b) The resolutions of the General Assembly and Security Council in relation to Jerusalem following the

occupation of the entire City of Jerusalem by Israel in June 1967 also maintained this original principle of

internationalization. Further, they required Israel to withdraw from territories occupied during the conflict, and

- 58 -

Jerusalem and, immediately upon occupation, expanded the boundaries of the Jerusalem

Municipality to absorb the entire city and additional parts of the West Bank, under its Civil

Administration.

376

On 4 July 1967, General Assembly resolution 2253, concerned with the situation prevailing in

Jerusalem, “called upon Israel to rescind all measures already taken and to desist forthwith

from taking any action which would alter the status of Jerusalem”.

377

Around a week later, on

14 July 1967, the General Assembly once again “deplored the failure of Israel to implement

General Assembly resolution 2253”.

378

Meanwhile, the report of the United Nations Secretary-

General in September 1967 observed that the “municipality of West Jerusalem began

operations in East Jerusalem the day after the fighting ceased. In the beginning it acted as the

agent of the Military Government, but from 29 June municipal processes started to function

according to Israel law”.

379

The United Nations Secretary-General concluded that “Israel was

taking every step to place under its sovereignty those parts of the city which were not controlled

by Israel before June 1967”.

380

Israel’s unilateral assertion of title over Jerusalem underscores its intention to integrate and

merge occupied East Jerusalem into Israel proper. For example, on 27 June 1967, when

introducing the bill that would become the “Jerusalem Law”, the Minister of Justice Ya’akov

Shimshon Shapira addressed the Knesset, stating:

The legal conception of the State of Israel – an organic conception adjusted to the

practical political realities – has always been based on the principle that the law,

jurisdiction and administration of the State apply to all those parts of Eretz Israel which

are de facto under the State’s control. It is the view of the Government – and this view

is in conformity with the requirements of international law – that in addition to the

control by the Israel Defence Forces of these territories there is required also an open

act of sovereignty on the part of Israel to make Israel law applicable to them ... It is for

this reason that the Government has seen fit to introduce the bill which I now submit to

the Knesset.

381

Later, in 1980, the Israeli Knesset adopted the Basic Law: Jerusalem, stating that “Jerusalem,

complete and united” is “the capital of Israel”.

382

Israel’s direct application of sovereignty in occupied Jerusalem violates the prohibition of

acquisition of territory by force. Security Council resolution 478 (1980) reaffirmed that “the

acquisition of territory by use of force is inadmissible”, and determined that all “legislative and

administrative measures and actions taken by Israel, the occupying Power, which have altered

or purport to alter, the character and status of the Holy City of Jerusalem and in particular the

to rescind all measures taken, as well as to refrain from taking further measures, to alter the status of Jerusalem.

Thus, it would appear that the United Nations since 1947 has maintained the principle that the legal status of

Jerusalem is that of a corpus separatum under an international regime.”

376

Israel Ministry of Foreign Affairs, Municipalities Ordinance (Amendment No. 6) Law, 5727-1967 (27 June

1967).

377

United Nations General Assembly resolution 2253 (1967), para. 2.

378

United Nations General Assembly resolution 2254 (1967).

379

Report of the Secretary-General Under General Assembly resolution 2254 (ES-V) Relating to Jerusalem,

S/8146 (12 September 1967) para. 28.

380

Ibid., para. 33.

381

Divrei HaKnesset [Parliamentary Records], vol. 49 (27 June 1967), col 2420 cited in Yehuda Z. Blum, “The

Status of Judea and Samaria Revisited: A Response to Eyal Benvenisti”, Isr. L. REV., vol. 51 (2018), pp. 165,

167.

382

Basic Law: Jerusalem, Capital of Israel, 34 Laws of the State of Israel 209 (1980).

- 59 -

recent ‘Basic Law’ on Jerusalem, are null and void and must be rescinded forthwith”.

383

2017, the relocation of the United States embassy to Jerusalem was similarly countered with a

condemnatory General Assembly resolution, calling on “all States to refrain from the

establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to Council

resolution 478 (1980)”.

384

While Jerusalem has effectively been formally annexed de jure, elsewhere large tracts of

occupied Palestine have been de facto annexed. In doing so, Israel, without a formal declaration

of annexation, has still demonstrated corpus et animus, i.e., the effective occupation of territory

in addition to the intention to appropriate it permanently, amounting to de facto annexation of

territory.

385

1.2 Israel’s acquisition of territory through de facto annexation

Throughout the decades, Israel’s laws, policies and practices in occupied Palestine have

underscored its intent to retain permanent effective control and to apply its sovereignty therein.

Such acts breach inter alia the prohibition on the acquisition of territory through use of force,

amount to de facto annexation, and are indicative of a breach of the principles of necessity and

proportionality for self-defence. Speaking in June 2021, former United Nations Secretary-

General Ban Ki-Moon stated that “Israel has pursued a policy of incremental de facto

annexation in the territories it has occupied since 1967, to the point where the prospect of a

two-state solution has all but vanished.”

386

More concretely, in a resolution of the lower house

adopted on 26 May 2021, the Republic of Ireland condemned Israel’s settlement activity in

Jerusalem and other areas of the West Bank as amounting “to unlawful de facto annexation of

that territory”.

387

This section establishes that large tracts of the Palestinian territory allocated for settlements,

including Area C, are effectively de facto annexed. The study draws on five key indicators to

assess the de facto annexation: (1) the seizure of territory; (2) the treatment of settlements as

inseparable from Israel; (3) Israel’s application of domestic legislation to occupied Palestine;

(4) an intention to keep the territory; and (5) the permanency of the occupation.

1.2.1 Seizure of Palestinian territory

Similar to de jure annexation, de facto annexation also includes the seizure of territory; in the

latter case, however, the intention to annex is implied. In occupied Palestine, the seizure of

territory is evidenced through the sweeping appropriations of private and public Palestinian

lands for settlement throughout the West Bank, including Jerusalem. These practices include

the appropriation of public and private Palestinian lands for the construction of more than 250

settlements and the transfer of 719,452 Israeli Jewish settlers into the West Bank, including

East Jerusalem.

388

383

United Nations Security Council resolution 478 (1980), preamble, para. 3.

384

United Nations General Assembly ES-10/19 Status of Jerusalem (21 December 2017), para.1.

385

Rainer Hofmann, “Annexation” Max Planck Encyclopedias of International Law [MPIL] (January 2020).

386

The Elders, “Ban Ki-Moon: The World Should Back a New Approach to the Israeli-Palestinian Conflict” (30

June 2021); Omar Dajani, “Symposium on Revisiting Israel’s Settlements: Israel’s Creeping Annexation” 111

American Journal of International Law (2017) p. 51; Valentina Azarova, “Israel’s Unlawfully Prolonged

Occupation: Consequences Under An Integrated Legal Framework” European Council on Foreign Relations

Policy Brief (June 2017) p. 7.

387

Dáil Éireann Debate (26 May 2021) vol. 1007 (6), Annexation of Palestine Motion.

388

State of Palestine, Palestinian Central Bureau of Statistics, Number of Settlers in the Israeli Settlements in the

West Bank by Region, 1986–2021.

- 60 -

Israel engineers every aspect of the settlement enterprise: planning and zoning; appropriating

Palestinian lands, including “uncultivated” agricultural lands, as “State lands”; providing

water, sanitation and electricity services to the settlements; and authorizing the construction of

roads, railway lines and other infrastructure to connect the settlements to each other and to

Israel proper.

389

The government-commissioned 2012 Levy Report made a number of

recommendations to retroactively authorize settlement outpost construction and expand

Israel’s settlement enterprise in the West Bank – recommendations which have since been de

facto implemented by the government and its agencies.

390

In 1971, the Israeli Military

Commander issued Military Order 418, which transferred competence for planning and zoning

from the local Palestinian village councils to the Military Commander.

391

Not only does this

military order impact the civilian sphere absent of military necessity, and therefore in breach

of Article 43 of the Hague Regulations; Israel also relies on its provisions to systematically

deny Palestinians permits for housing construction. Between January 2009 and January 2023,

some 9,163 unlicensed structures were demolished by the Israeli military, resulting in the

displacement of 13,000 Palestinians.

392

By 1992, out of the 70,000 hectares of Palestinian land

in Area C, only 12 per cent remained for Palestinian development after Israel appropriated it

as “State land”.

393

At the same time, Israel has radically altered the demography of the West

Bank, transferring in over 500,000 Israeli Jewish settlers to Area C

394

– an irreversible measure

with permanent consequences, and indicative of sovereign expression.

395

In July 2020, Israel came close to implementing the Trump Peace to Prosperity Plan, which

would have seen large tracts of the Jordan Valley and settlement blocs formally annexed to

Israel.

396

A joint statement issued by United Nations Special Rapporteurs warned that “the

acquisition of territory by war or force is inadmissible … Israel’s stated plans for annexation

would extend sovereignty over most of the Jordan Valley”.

397

However, even without the

Trump plan, Israel’s intention to permanently acquire the territory comprising most of Area C

has already been established.

1.2.2 Treatment of settlements as inseparable from Israel

389

The Fourth United Nations Seminar on the Question of Palestine, “The Inalienable Rights of the Palestinian

People”, 31 August – 4 September 1981, Havana.

390

Yesh Din, From Occupation to Annexation the Silent Adoption of the Levy Report on Retroactive

Authorization of Illegal Construction in the West Bank (February 2016) 4. In 2017, the “Land Regularisation

Law” providing for the retroactive legalization of outposts was struck down by the Israeli High Court of Justice

for disproportionately affecting Palestinian rights to property, dignity and equality. HCJ 1308/17, Silwad

Municipality, et al. v. The Knesset, et. al (9 June 2020) (joined by the Court with HCJ 2055/17, The Head of Ein

Yabrud Village v. The Knesset).

391

Israeli Military Order No. 418, Concerning Towns, Villages and Buildings Planning Law (Judea & Samaria)

(1971).

392

OCHA, Breakdown of Data on Demolition and Displacement in the West Bank.

393

United Nations Habitat, “Spatial Planning in Area C of the Israeli Occupied West Bank of the Palestinian

Territory Report of an International Advisory Board” (May 2015) p. 18.

394

Population – Statistical Abstract of Israel 2019 – No. 70, Population of Jews and Others by Natural Region

(2018); OCHA, “Under Threat: Demolition Orders in Area C of the West Bank”; Claire Parker, “Jewish Settler

Population in West Bank Passes Half a Million” The Washington Post (2 February 2023).

395

Al-Haq, Establishing Guidelines to Determine Whether the Legal Status of ‘Area C’ in the Occupied

Palestinian Territory Represents Annexed Territory Under International Law (2020) p. 47.

396

The White House, Peace to Prosperity: A Vision to Improve the Lives of the Palestinian and Israeli People

(2017); Shalom Yerushalmi and TOI Staff, “Netanyahu to Initially Annex 3 Settlement Blocs, not Jordan Valley

— Officials” (10 June 2020).

397

UNHCR “Israeli Annexation of Parts of the Palestinian West Bank Would Break International Law – United

Nations Experts Call on the International Community to Ensure Accountability” (16 June 2020).

- 61 -

Former United Nations Special Rapporteur Michael Lynk has argued that one of the indicators

of de facto annexation is the occupying Power’s exercise of sovereignty over the occupied

territory.

398

Undoubtedly, the planning and zoning of Palestinian land for Israeli residential,

commercial and agricultural settlement, repurposing it for Israeli nationals, reflects an

incontrovertible exercise of sovereign authority by successive Israeli governments over

occupied Palestine. For example, master plans for settlement construction are not drawn up by

the Military Commander to serve the best interests of the protected occupied population or for

reasons of absolute military necessity in reaction to ongoing military operations, but rather, are

colonial plans reflective of Israeli government policy.

A number of elaborate unofficial master plans for the settlement of the West Bank, including

East Jerusalem, underpinned successive Israeli government decisions to construct and expand

settlements since 1967 – acts of settlement which have continued for over half a century. In

2012, an Independent International Fact-Finding Mission to investigate the implications of the

Israeli settlements noted that:

[d]espite these plans not having been officially approved they have largely been acted

upon by successive Israeli Governments. The Mission notes a pattern where plans that

were developed regarding the settlements were mirrored in Government policy

instruments and implemented on the ground.

399

These plans include the Allon Plan (1967) drafted by Israeli Defence Minister Yigal Allon,

which saw the settlement of Ma’ale Adumim between 1975 and June 1979 under the Labour

government. The aim, as outlined by Allon, was to secure the “maximum security and

maximum territory for Israel with a minimum number of Arabs”.

400

Settlement continued with

the establishment of the Inter-Ministerial Committee to Examine the Rate of Development for

Jerusalem in 1973, which provided for an outer ring of settlements around Jerusalem, including

Mishor Adumim, developed by the Jerusalem Municipality.

401

In 1976, Prime Minister Rabin

unofficially approved the Wachman Plan (1976), which provided a template for the

construction of settlements in sparsely populated areas strategically encircling the major

Palestinian population centres around the West Bank.

402

Following the Likud election in 1977,

Ariel Sharon become Chairman of the Inter-Ministerial Settlement Committee, and under the

Sharon-Wachman Plan (1977) he proposed “urban, industrial settlements on the ridges” and

strategically placed settlements in belts to fragment the Palestinian territory.

403

However, it was

the Drobles Plan (1977) that became the Likud government’s blueprint for settlement in the

1980s.

404

The plan aimed to connect all existing settlements into one network while breaking

Palestinian territorial contiguity. This provided “settlements with immediate territorial unity

398

UNHCR “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories

occupied since 1967”, (22 October 2018) A/73/45717, para. 31.

399

United Nations HRC, “Report of the Independent International Fact-Finding Mission to Investigate the

Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the

Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem” (2012) para. 23.

400

Eyal Weizman, Hollow Land: Israel’s Architecture of Occupation (Verso 2007) p. 58.

401

Leila H. Farsakh, Rethinking Statehood in Palestine Self-Determination and Decolonization Beyond

Partition (University of California Press 2021) 84–85; “The History of Israeli Settlement Expansion in and

around East Jerusalem from 1967 to 1993” Jerusalem Story, 6 December 2022.

402

“Israel Settlement Master Plans 1976–1991”, Palestinian Academic Society for the Study of International

Affairs

403

Eyal Weizman, Hollow Land: Israel’s Architecture of Occupation (Verso 2007) p. 80.

404

United Nations, The Question of Palestine, “Settlements/Mattityahu Drobless plan/Settlements by Israel in

the illegally occupied Arab territories – Letter from CEIRPP Acting Chairman” (9 June 1981).

- 62 -

and overall contiguity with Israel’s coastal plain”.

405

By 1979, some 43 settlements had been

established and 10,000 settlers transferred into the West Bank.

406

Under the Gush-Drobles (1978) and Sharon (1981) plans, then–Minister of Defence Ariel

Sharon advanced the plans for settlement construction along the central mountain ridge and the

Green Line, while leaving pockets of densely populated Palestinian centres under Palestinian

control.

407

This saw the establishment of a corridor of 10 settlements along the mountain ridge

in the West Bank and north of Jerusalem.

408

The Hundred Thousand Plan (1983), published by

Israel’s Ministry of Agriculture, prepared the way for a total of 100,000 settlers to live in 43

new Israeli settlements, with settlement construction plans forecast up to the year 2010.

409

Guidelines presented by Prime Minister Yitzhak Shamir to the Knesset mirrored provisions of

the Hundred Thousand Plan.

410

In 1991, Sharon, now serving as Minister of Construction and

Housing, developed the Seven Stars Plan (1991), constructing a new industrialized belt of

settlement towns and connecting settlement blocs in outer Jerusalem to settlement blocs in

other parts of the West Bank.

411

In 1996 Prime Minister Netanyahu’s guidelines for

government, similarly, focused squarely on settlement expansion beyond the Green Line. The

policy dictated that “[s]ettlement in the Negev, the Galilee, the Golan Heights, the Jordan

Valley, and in Judea, Samaria [West Bank] and Gaza is of national importance, to Israel’s

defense and an expression of Zionist fulfilment”.

412

By 1999, at the end of Prime Minister Netanyahu’s first term in office, more than 50 new

settlement outposts had been established.

413

Settlement construction continued apace,

greenlighted by Prime Minister Ehud Barak’s “settlement guidelines” in the years 1999 to

2001, continued under Prime Minister Ariel Sharon’s government from 2001 to 2003, and

again during Sharon’s second term from 2003 to 2006.

414

At the same time, a number of

Jerusalem master plans including the Jerusalem 2000, and the Jerusalem 2020 Master Plan

(2004) sought to consolidate Israeli Jewish presence in occupied Jerusalem and radically alter

the demographic of the City.

415

The Jerusalem 5800 Master Plan lays out plans for a Greater

Jerusalem Metropolitan – an area engulfing major Palestinian cities Bethlehem, Jericho and

Ramallah.

416

The plan proposes a new international airport for Jericho, and the connection of

settlement roads and rail infrastructure to ferry incoming tourists to developed tourist

405

“Israel Settlement Master Plans 1976–1991”, Palestinian Academic Society for the Study of International

Affairs; “The History of Israeli Settlement Expansion in and around East Jerusalem from 1967 to 1993”

Jerusalem Story, 6 December 2022.

406

United Nations HRC, “Report of the Independent International Fact-Finding Mission to Investigate the

Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the

Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem” (2012) p. 27.

407

“Israel Settlement Master Plans 1976–1991”, Palestinian Academic Society for the Study of International

Affairs.

408

Ibid.

409

United Nations HRC, “Report of the Independent International Fact-Finding Mission to Investigate the

Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the

Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem” (2012) p. 30.

410

Ibid., p. 31.

411

“Israel Settlement Master Plans 1976–1991”, Palestinian Academic Society for the Study of International

Affairs.

412

United Nations HRC, “Report of the Independent International Fact-Finding Mission to Investigate the

Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the

Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem” (2012) p. 32.

413

Ibid., p. 33.

414

Ibid., p. 35–36.

415

Local Outline Plan Jerusalem 2000, Report No. 4 The Proposed Plan and the Main Planning Policies

Prepared for Jerusalem Municipality, section 7.

416

Jerusalem 5800 Magazine, 20–21.

- 63 -

settlements across the West Bank as the planned mainstay of the Israeli economy.

417

Moreover,

the Atarot settlement will be expanded and developed as the main industry hub for Israel.

418

The first six months of 2023 saw Israel advance record rates of settlement housing units. In

April 2023, the incoming Israeli government approved six master plans for settlement

construction in the West Bank, including for the establishment of two new settlements.

419

Israel

advanced plans for 16,000 settlement units in occupied East Jerusalem

420

and 13,000 settlement

units in the West Bank.

421

Only six months into 2023, this total of almost 30,000 proposed new

housing units in the Israeli settlements in occupied Palestine is already an annual record for the

approval of settlement housing units.

1.2.3 Israel’s application of domestic legislation to occupied Palestine

The application of a series of Israeli laws directly to the West Bank is further evidence of

annexationist intent.

422

To start, Israel has avoided determining its borders and considers that

its law, jurisdiction and administration extend to any area of “Eretz Israel” – a geographical

area comprising the entirety of the territory of Mandatory Palestine, including the occupied

territory.

423

Although many of the measures implemented by Israel in the West Bank mirror

Israeli law, they are introduced under military order, for example the application of Israel’s

currency to occupied Palestine.

424

However, Israel directly negotiates leases and licensing

agreements for the exploitation of Palestinian natural resources with Israeli and international

corporations operating in the occupied territory to exploit quarries, water, oil, and mineral

resources.

425

Israel applies a number of Emergency Regulations, renewable every five years

since 1967, which extend Israel’s criminal jurisdiction over settlers,

426

and also provide for the

application of Israeli tax and health insurance law to settlers in occupied Palestine.

427

Likewise, Israel directly applies its Administrative Affairs Court Law, 5760-2000, which

provides for the jurisdiction of an Administrative Affairs Court established under Israeli law to

hear planning and construction cases from the West Bank.

428

Similarly, the Law for Amending

417

Jerusalem 5800 Magazine, 48–49.

418

Jerusalem 5800 Magazine, 26–27.

419

United Nations Security Council Report, “The Middle East, including the Palestinian Question: April 2023

Monthly Forecast” (April 2023).

420

Ir Amim, Major Acceleration of Israeli Settlement Activity since January 2023 Juxtaposed with Deprivation

of Palestinian Housing Rights (15 June 2023).

421

“Israel Sets Record for Illegal Settlement Approvals: Rights Group” Al Jazeera (14 July 2023).

422

Since 1967, Israel has applied its currency to occupied Palestine under Military Order Concerning the

Establishment of the Israeli Currency as Legal Tender (Judea and Samaria) (No. 76), 5727-1967.

423

Law and Administration Ordinance, 5708-1948, art. 11(b); “The Comay-Meron Cable reveals reasons for

Israeli position on applicability of

4th Geneva Convention” (Akevot, 20 March 1968); John Quigley, “Jerusalem:

The Illegality of Israel’s Encroachment” The Palestine Yearbook of International Law (1996–1997) 30, fn. 49.

424

Order Concerning the Establishment of the Israeli Currency as Legal Tender (Judea and Samaria) (No. 76),

5727-1967; Eyal Benvenisti, The International Law of Occupation (OUP 2012) p. 235.

425

See Human Rights Watch, Occupation Inc. How Settlement Businesses Contribute to Israel’s Violations of

Palestinian Rights (2016).

426

The Criminal Procedure Law (Enforcement Powers – Detentions) 5756-1996; Criminal Procedure Law

(Detainee Suspected of Security Offenses) (Temporary Order) 5766-2006. The Israeli High Court of Justice has

ruled that Israel’s Basic Law: Human Dignity and Liberty applies in personam to Israeli settlers. HCJ 1661/05,

Gaza Beach Regional Council et al v. Knesset of Israel et al., 59 (2) PD 481 (2005) para. 80.

427

TOI Staff, “Months After Felling Coalition, Settler Law Extension Cruises Through Knesset” Times of Israel

(10 January 2023); Noa Shpigel, “Israel’s Knesset Extends West Bank Emergency Orders by Another Five

Years” Haaretz (24 January 2023).

428

Naschitz Brandes Amir, “Administrative Law: The Jurisdiction of the Administrative Affairs Court is

Extended to Cover a Variety of Additional Matters” Lexology (4 March 2016).

- 64 -

and Extending the Validity of Emergency Regulations (Judea and Samaria – Jurisdiction in

Offenses and Legal Aid) 2007, grants jurisdiction to Israel’s courts to hear cases related to

Israeli settlers for conduct in the West Bank.

429

In 2018, the Knesset voted to facilitate the

accreditation of settlement universities under the Higher Education Law

430

and the designation

of settlements as “National Priority Areas”, among others.

431

Further, the recent absorption of

the Civil Administration and parts of Coordination of Government Activities in the Territories

(COGAT), from the authority of the Military Commander into the civil competence of the

Minister for Finance sitting as the second Defence Minister, are clear indicators of an intention

to extend sovereignty over occupied Palestine.

432

1.2.4 Demonstrating an intention to keep the territory

The extensive pre-planning for the occupation is further indicative of Israel’s permanent plans

to obtain Palestinian territory, as the declassified historical records recently published by

Akevot clearly outline.

433

In July 1967, in a Military Advocate General briefing to the Knesset

Constitution, Law and Justice Committee, Col Shamgar (who later became a Supreme Court

Justice and Chief Justice) explained the advance planning for the occupation, including the

phrasing of military orders, which took place “long before this war began”.

434

In 1968, a

classified cable sent by Israeli legal adviser Theodore Meron to then–Israeli Ambassador

Yitzhak Rabin recommended that Israel avoid being classed as an occupying Power.

435

Meron

advised that “[e]xpress recognition on our part of the applicability of the Geneva Convention

would highlight serious issues … [W]e have to leave all options regarding borders open, we

must not acknowledge that our status in the administered territories is simply that of an

occupying power”.

436

The deliberate omission of Israel’s status as an occupying Power

underlined its expansionist and annexationist aims in administering Palestine.

Alongside the policies and plans for settlement construction and expansion, a number of Israeli

leaders have expressed an animus to acquire the territory permanently. In his Knesset speech

on the ratification of the Oslo Accords, Prime Minister Yitzhak Rabin outlined the vision for

Israel’s expansion, stating that “[t]he borders of the State of Israel, during the permanent

solution, will be beyond the lines which existed before the Six Day War” and promising “[t]he

establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif”.

437

2012, Naftali Bennett, leader of the Yamina party, issued a seven-point plan for “managing”

the “Arab-Israeli Conflict in Judea and Samaria” premised on Israel’s extension of sovereignty

over Area C of the West Bank. According to Bennett:

429

Law for Amending and Extending the Validity of Emergency Regulations (Judea and Samaria – Jurisdiction

in Offenses and Legal Aid) 2007, art. 2(a) and (c); “Bill Giving Illegal Settlers Full Rights as Citizens Passes

First Reading in Israel” Middle East Monitor (10 January 2023).

430

“Israel’s Creeping Annexation: Knesset Votes to Extend Israeli Law to Academic Institutions in the West

Bank”, Haaretz, 12 February 2018.

431

Adalah, Israeli Government Adds 20 Jewish Towns to “National Priority Area” List, 9 are Settlements in the

Occupied West Bank; Arab Towns in Israel Excluded (14 August 2013).

432

Emmanuel Fabian, “‘Civil Responsibility’ in West Bank Handed to Smotrich After Meeting with COGAT

Head”, The Times of Israel, 12 January 2023.

433

Military Government Organisation in Preparation for War – Proposed Discussion (Akevot, June 1963).

434

Sixth Knesset, Second Session 1399, Transcript No. 126 of the Constitution, Law and Justice Committee

Session held Wednesday, 27 Sivan 5727 – July 5, 1967 at 8:30 (Akevot).

435

Valentina Azarova, “Israel’s Unlawfully Prolonged Occupation: Consequences Under an Integrated Legal

Framework” European Council on Foreign Relations (June 2017) p. 7.

436

“The Comay-Meron Cable reveals reasons for Israeli position on applicability of

4th Geneva Convention”

(Akevot, 20 March 1968).

437

Yitzhak Rabin: Speech to Knesset on Ratification of Oslo Peace Accords, 5 October 1995.

- 65 -

Through this initiative, Israel will secure vital interests: providing security to Jerusalem

and the Gush Dan Region, protecting Israeli communities, and maintaining sovereignty

over our National Heritage Sites. The world will not recognize our claim to sovereignty,

as it does not recognize our sovereignty over the Western Wall, the Ramot and Gilo

neighborhoods of Jerusalem, and the Golan Heights. Yet eventually the world will

adjust to the de facto reality.

438

Likewise, in 2020, in the aftermath of the Trump Peace to Prosperity Plan to annex the Jordan

Valley and other parts of the West Bank to Israel, Prime Minister Netanyahu emphatically

restated Israel’s annexationist intent: “There is no change to my plan to extend sovereignty …

our sovereignty in Judea and Samaria [is] in full coordination with the United States”.

439

More recently, Israel amended its quasi-constitutional Nation State Law, providing exclusively

that “the State of Israel is the nation state of the Jewish People, in which it realizes its natural,

cultural, religious and historical right to self-determination”.

440

Presciently, Article 7 of the law

established that “the State [of Israel] views the development of Jewish settlement as a national

value” and commits to “act to encourage and promote its establishment and strengthening”. In

December 2022, incoming Prime Minister Netanyahu underscored that the government would

“promote and develop settlement in all parts of the Land of Israel – in the Negev, the Golan,

Judea and Samaria”.

441

1.2.5 Permanency of the occupation as an indicator for de facto annexation

As the UK House of Lords expressed in the Sovfracht case, territory can be considered de facto

annexed when the control over the occupied territory is of a sufficiently permanent character

to “show the intention to keep it”.

442

In the Wall advisory opinion, the International Court of

Justice considered that “the construction of the wall and its associated regime create a ‘fait

accompli’ on the ground that could well become permanent, in which case … it would be

tantamount to de facto annexation”.

443

Likewise, Jordan, in its written statement to the

International Court of Justice in the Wall advisory opinion, referred to the notion of “creeping”

and “indirect” expropriation in private property and noted that “[t]here is no reason in

international law to treat the taking of territory by way of de facto annexation any

differently”.

444

Certainly, the temporary nature of belligerent occupation is well understood by the Israeli

Supreme Court, which has argued: “This Court has emphasized time and time again that the

authority of the military commander is inherently temporary, as belligerent occupation is

inherently temporary. Permanent arrangements are not the affair of the military

438

Naftali Bennett, The Israeli Stability Initiative, February 2012.

439

“Netanyahu Says West Bank Annexation Plans Still ‘On The Table’” Al Jazeera, 13 August 2020.

440

See Adalah, Israel’s Nation-State Law (2 August 2018).

441

Carrie Keller-Lynn and Michael Bachner, “Judicial Reform, Boosting Jewish Identity: The New Coalition’s

Policy Guidelines” The Times of Israel, 28 December 2022; This continues previous policy aims of Prime

Minister Netanyahu, who stated in 2017, “There will be no more uprooting of settlements in the land of Israel. It

has been proven that it does not help peace.” “Netanyahu Vows to Never Remove Israeli Settlements from West

Bank: ‘We’re Here to Stay, Forever’”, Haaretz, 29 August 2017.

442

England, House of Lords, Sovfracht (V/O) v. Van Udens Scheepvaart en Agentuur Maatschappij (N.V Gebr)

10 International Law Reports (3 December 1942) Case No. 165.

443

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) p. 121.

444

Ibid., Jordan, Written Statement Submitted by the Hashemite Kingdom of Jordan, (30 January 2004) pp. 79–

80, para. 5.106.

- 66 -

commander”.

445

Nonetheless, the Israeli Supreme Court, sitting as the High Court of Justice,

has for decades sidestepped the applicability of Article 49 of the Geneva Conventions

prohibiting civilian settlement by the occupying Power; at the same time, it has deferred to the

Military Commander’s security arguments to appropriate Palestinian lands and forcibly

transfer the occupied Palestinian population, actions which have grave and permanent

consequences.

446

The aim, as outlined by former Jewish Home Member of Knesset Orit Struk, is “the application

of Israeli sovereignty gradually over the areas of settlement in Judea and Samaria … in keeping

with the idea that the entire process of Zionism is a gradual process”.

447

Following the Israeli

High Court of Justice decision in the 1979 Elon Moreh case, which ruled that Israel could not

construct settlements on privately owned Palestinian land, Attorney General Yitzhak Zamir

responded with a legal recommendation to create a special ministerial committee to safeguard

settlements from legal challenge and to provide land for settlement construction.

448

In 1982,

Israeli Supreme Court Justice Meir Shamgar suggested that a military administration of

territory could “from the legal point of view, continue indefinitely”.

449

Some 19 years after the advisory opinion in the Wall case, there is clear evidence that Israel’s

actions in seizing land in Area C, inter alia, as ‘State land’ for settlement construction; its

governmental implementation of master plans; and its allocation of State resources for

settlement zoning, construction and utilities across the West Bank,

450

including East Jerusalem,

have in fact become a fait accompli, de facto annexed.

451

Israel’s application of laws directly

to the occupied territory, deliberate evasion of international humanitarian law, and prolonged

indefinite occupation, indicate that the massive land appropriations for settlements and the

Wall, are reflective of colonial practices revealing a settled and permanent annexationist

“character, purpose and intention”.

452

In summation, there is clear evidence that Israel has effectively de jure annexed East Jerusalem

and de facto annexed the settlements and the land comprising Area C,

453

and continues to

maintain and promote the settlement of Palestinian lands as a constitutional aim. Such

annexations breach the prohibition on the acquisition of territory through use of force, a

peremptory norm of international law. Further, the permanent annexationist intentions

demonstrate that the occupation, supposedly undertaken as an act of self-defence but concluded

445

HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel et al., (30 June 2004) para. 28.

446

See, for example, HCJ 10356/02, Hass v IDF Commander in the West Bank (the Machpela Cave case) (4

March 2004) (this case was joined with HCJ 10497/02, Hebron Municipality v IDF Commander in Judaea and

Samaria); HCJ 1890/03, Bethlehem Municipality v. the State of Israel (Rachel’s Tomb case), (3 February 2005);

HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel et al., (30 June 2004) and HCJ 7857/04,

Mara’abe et al., v. The Prime Minister of Israel et. al., (15 September 2005).

447

“Is Israel Moving Closer to Full Sovereignty in Judea-Samaria?” Arutz Sheva, 20 October 2014.

448

Ian Lustick, “Israel and the West Bank after Elon Moreh: The Mechanics of De Facto Annexation” Middle

East Journal, vol. 35(4) (1981) pp. 557, 565.

449

Meir Shamgar, “Legal Concepts and Problems of the Israeli Military Government – The Initial Stage”, in

Military Government in the Territories Administered by Israel 1967–1980: The Legal Aspects, Meir Shamgar,

ed. (Hebrew University of Law) pp. 14, 43.

450

For further analysis on utilities see Marya Farah and Maha Abdallah, “Domination, Transformation and

Annexation via Utilities”, in Prolonged Occupation and International Law: Israel and Palestine, Nada

Kiswanson and Susan Power, eds. (BRILL Nijhoff, 2023) pp. 348–370.

451

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 121.

452

England, House of Lords, Sovfracht (V/O) v. Van Udens Scheepvaart en Agentuur Maatschappij (N.V Gebr)

10 International Law Reports (3 December 1942) Case No. 165.

453

Al-Haq, Establishing Guidelines to Determine Whether the Legal Status of ‘Area C’ in the Occupied

Palestinian Territory Represents Annexed Territory Under International Law (2020) p. 83.

- 67 -

instead as a land grab, has breached military necessity and proportionality and is radically

divorced from its origins as a use of force responding to the alleged Egyptian blockade.

2. Israel’s acts denying Palestinian right to self-determination breach the necessity and

proportionality principles for self-defence

The second peremptory norm breached by Israel is the realization of the Palestinian people of

their right to external self-determination and an independent State. Here the study outlines two

parallel grounds on which the right is breached: (1) through the prolonged and indefinite nature

of the occupation; and (2) through Israel’s policies and practices in maintaining the unlawful

settlement enterprise. On this basis, the administration of the Palestinian territory in a manner

denying the external right to self-determination, a jus cogens norm of international law, is

indicative of a breach of the principles of necessity and proportionality for self-defence, making

the occupation unlawful.

2.1 Israel’s prolonged occupation breaches regional peace agreements

The scale of Israel’s prolonged occupation of the Palestinian territory, now in its fifty-sixth

year, far outweighs the threat of the original attack. Furthermore, a number of regional peace

agreements have been concluded in the intervening years.

454

A ceasefire agreement between

Egypt and Israel was negotiated in November 1973.

455

In 1979 the Egypt–Israel Peace Treaty

was signed, whereupon the Sinai Peninsula was returned to Egyptian sovereign control.

456

25 July 1994, a peace treaty terminating belligerency between Israel and Jordan was signed.

457

Any continuing right to self-defence would have formally ended as a result of the peace

agreements with Egypt in 1979 and with Jordan in 1994.

However, somewhat anomalously, Israel still continued its military occupation of the

Palestinian territory despite the peace agreements with Egypt and Jordan. A letter agreement

signed on 26 March 1979 “concerning the establishment of full autonomy in the West Bank

and the Gaza Strip” was annexed to the peace treaty between Egypt and Israel.

458

To this end,

the parties agreed to start negotiations within a month after the exchange of the instruments of

ratification of the Peace Treaty. The letter outlined the purpose of the negotiations in defining

the powers and responsibilities of an elected self-governing authority (administrative council)

in the West Bank and Gaza whereby:

The two Governments agree … that the objective of the negotiations is the

establishment of the self-governing authority in the West Bank and Gaza in order to

provide full autonomy to the inhabitants. Israel and Egypt set for themselves the goal

of completing the negotiations within one year so that elections will be held as

expeditiously as possible after agreement has been reached between the Parties.

459

454

W. Thomas Mallison, George K. Walker, John F. Murphy and Jordan Paust, “Aggression or Self-Defense in

Lebanon in 1982?” 77 Proceedings of the Annual Meeting (American Society of International Law) (April 14–

16, 1983) pp. 174, 175.

455

Egypt-Israel, Ceasefire Agreement, 1973, 12 ILM 1312 (1973).

456

Treaty of Peace Egypt-Israel (26 March 1979), 18 ILM 362 (1979); Rashid Khalidi, The Hundred Years War

on Palestine, A History of Settler Colonial Conquest and Resistance (Profile Books 2020) p. 134.

457

Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994.

458

No. 17813 Egypt and Israel, Treaty of Peace 1 (with annexes, maps and agreed minutes), 26 March 1979.

459

Letter Agreement Additional to the Treaty of Peace of 26 March 1979 between Egypt and Israel, Concerning

the Establishment of Full Autonomy in the West Bank and the Gaza Strip.

- 68 -

Following this, there was a planned transitional period of five years for the withdrawal of the

Civil Administration and the occupying forces:

The Israeli military government and its civilian administration will be withdrawn, to be

replaced by the self-governing authority, as specified in the “Framework for Peace in

the Middle East”. A withdrawal of Israeli armed forces will then take place and there

will be a redeployment of the remaining Israeli forces into specified security

locations.

460

The Framework for Peace in the Middle East agreed upon at Camp David on 17 September

1978 was premised on Security Council Resolutions 242 and 338 “in all their parts”.

461

particular, Security Council resolution 242 called for the “withdrawal of Israel armed forces

from territories occupied in the recent conflict” and the “termination of all claims or states of

belligerency”.

462

Given the provisions for the withdrawal of Israel’s armed forces and the Civil

Administration, it is clear that the intention of the agreement was for the conclusion of

hostilities and for the belligerent occupation to come to an end.

Similarly, in 1994, Israel and Jordan agreed to recognize and respect each other’s sovereignty,

territorial integrity and political independence. Articles governing the issue of Palestinian

refugees referred to a framework to be agreed upon in negotiations “in conjunction with and at

the same time as the permanent status negotiations pertaining to the Territories”.

463

The

demarcation of an international boundary between Jordan and Israel was similarly concluded

“without prejudice to the status of any territories that came under Israeli military government

control in 1967”.

464

In official minutes annexed to the peace treaty, the two governments further

agreed to consult each other “with regard to economic and monetary matters pertaining

specifically to the territories under Israeli military control”.

465

However, the agreement did not

include provision for withdrawal or ending the occupation. As it currently stands, Israel’s

occupation of the Palestinian territory exceeds calls for its withdrawal under Security Council

resolution 242 by 56 years. Some 45 years on from the Camp David accords, and 39 years on

from the Jordan peace agreement, it is clear that the original alleged threat prompting Israel’s

use of force in pre-emptive self-defence has completely and irrevocably ended.

It is clear from the foregoing that Israel is administering the territory under a protracted and

indefinite occupation with permanent elements. The manner in which Israel is administering

the Palestinian territory as a prolonged occupation with permanent elements is, further, ultra

vires international humanitarian law. For example, although the Israeli Supreme Court, sitting

as the High Court of Justice (IHCJ), recognizes the occupation of the Palestinian territory as

temporary in nature,

466

in practice, the deliberate failure of the State to incorporate the Geneva

Conventions into domestic law

467

and the subsequent reliance of the IHCJ on a narrow arbitrary

460

Ibid.

461

A Framework for Peace in the Middle East Agreed at Camp David, 17 September 1978.

462

United Nations Security Council resolution 242 (22 November 1967), para. 1(1).

463

Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, art. 8(2)(b).

464

Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, art. 3(2).

465

Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, Agreed Minutes A.

Concerning Article 3(1), vol. 2042, 1-35325, p. 467.

466

“This Court has emphasized time and time again that the authority of the military commander is inherently

temporary, as belligerent occupation is inherently temporary. Permanent arrangements are not the affair of the

military commander”. HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel, Commander of

the IDF Forces in the West Bank (30 June 2004) para. 28.

467

Notably, the Hague Regulations are binding on Israel as customary international law. See International Court

of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory

- 69 -

band of ad hoc customary provisions of the Geneva Conventions facilitates practices whereby

Israel carries out acts with a permanent character. The IHCJ has increasingly adapted the

application of the Hague Regulations to provide for the “prolonged nature” of the occupation,

468

to grant equal rights to settlers illegally transferred into occupied territory,

469

to construct

road infrastructure connecting the settlements and Israel,

470

to approve the harmonization of

the VAT rate in the occupied territory with that of Israel,

471

and to integrate the electricity

infrastructure.

472

These actions include civilian settlement and property appropriation and

alienation – practices which are usually the preserve of the legitimate sovereign and are strictly

prohibited under the Fourth Geneva Convention.

473

In the Wall advisory opinion, the written statement of South Africa recalled that States have

rejected prolonged occupation in the name of self-defence by reference to the precedents of

necessity and proportionality.

474

Similarly, in Armed Activities on the Territory of the Congo,

the separate reply of the Democratic Republic of Congo posited that “[t]he duration of the

occupation of Congolese territory shows in any case that the means used by Uganda are

disproportionate”.

475

More recently, the reports of the Independent International Commission

of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, have

described the situation of Israel’s “permanent occupation” and “perpetual occupation” of the

Palestinian territory.

476

Opinion) International Court of Justice Reports 136 (2004) para. 89; HCJ 606/78, Saliman Tawfiq Ayub et al v.

Minister of Defense et al (15 March 1979) and HCJ 610/78, Ayub et al. v. Minister of Defense et al. (Bekaoth)

(15 March 1979). See also HCJ 390/79, Izzat Muhammad Mustafa Duweikat et al. v. Government of Israel et al

(the Elon Moreh case) (22 October 1979).

468

That occupation is temporary in nature is clearly established from the de facto conditions for its

establishment under Article 42 of the Hague Regulations. ICTY, Prosecutor v. Mladen Naletilic, Aka “Tuta”

and Vinko Martinovic, aka “ŠTELA”, Judgment Case No. IT-98-34-T, 31 March 2003, para. 214. More

specifically, belligerent occupation is described as a “transitional period following invasion and preceding the

agreement on the cessation of the hostilities”, which places more “onerous duties” on the occupying Power than

a party to an international armed conflict.; See HCJ 337/71, Christian Society for the Holy Places v. Minister of

Defense (1972) (An English summary of the decision is available at Court Decisions, Christian Society for the

Holy Places v. Minister of Defense, 2 Israel Yearbook of Human Rights (1972) 354, para. 582). “Life does not

stand still, and no administration, whether an occupation administration or another, can fulfil its duties with

respect to the population if it refrains from legislating and from adapting the legal situation to the exigencies of

modern times.”

469

HCJ 256/72, Jerusalem District Electricity Co. Ltd. v. Minister of Defense et al., 27(1) PD 124, 138. The

Israeli High Court of Justice found that supplying electricity to recently constructed settlements fulfilled the

“obligation of the government to look after the economic welfare of the area’s population”.

470

HCJ 393/82, Jamayat Askan et al., v. Commander of IDF Forces in the Judea and Samaria region et al. (12

December 1983) p. 13, para. 12.

471

HCJ 69/81, Abu Aita et al. v. Commander of Judea and Samaria et al. (VAT case), 37(2) PD 197, 310.

English translation in 13 IYHR 348 (1983).

472

“Jerusalem District Electricity Co Ltd v. Minister of Energy and Infrastructure and Commander of the Judea

and Samaria Region”, 11 Israel Yearbook on Human Rights 354 (1981) 357; Scobbie, “Prolonged Occupation

and Article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and

Procedurally” (EJIL Talk 16 June 2016).

473

Fourth Geneva Convention (1949), arts. 33 and 49.

474

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) Written Statement Submitted by

the Government of the Republic of South Africa (30 January 2004) para. 37.

475

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports 2005 (19 December 2005)

Merits, Written Proceedings, Reply of the Democratic Republic of the Congo, (29 May 2002), 240–242, para.

3.172 [unofficial translation from French].

476

A/77/328, “Report of the Independent International Commission of Inquiry on the Occupied Palestinian

Territory, including East Jerusalem, and Israel” (14 September 2022), paras. 51, 75; A/HRC/50/21, “Report of

the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East

Jerusalem, and Israel” (9 May 2022) para. 69.

- 70 -

2.1.2 Settlements and the denial of the Palestinian right to self-determination

This section demonstrates how Israel’s conduct in administering the Occupied Palestinian

Territory to establish colonial settlements not only violates international humanitarian law

governing belligerent occupation, but also amounts to a violation of the exercise of the right to

self-determination, a peremptory norm of international law. This warrants an examination of

(1) Israel’s policies and practices of settlement construction, (2) the zoning of settlements to

fragment the Palestinian territory, (3) the administrative fragmentation of the Palestinian

people, (4) the erasure of Palestinian presence, (5) the forcible transfer of Palestinians and the

transfer in of nationals of Israel, the occupying Power, and (6) interference in the democratic

process.

Today, the territory of the West Bank, including East Jerusalem, has been broken up by the

construction of over 250 Israeli settlements and outposts, and the Israeli civilian presence of

some 719,452 settlers.

477

Israel’s 2018 Nation State Law entrenched the long-held practice that

“[t]he state views Jewish settlement as a national value and will labor to encourage and promote

its establishment and development” and that “[t]he exercise of the right to national self-

determination in the State of Israel is unique to the Jewish people”.

478

However the construction

of settlements during belligerent occupation breaches a number of provisions of international

humanitarian law regulating the conduct of an occupying Power. This includes Article 46 of

the Hague Regulations (1907) protecting private property, Article 52 limiting the requisitions

of private property, and Article 55 governing the usufruct of public immoveable property, in

addition to Article 49 of the Fourth Geneva Convention (1949) prohibiting the forcible transfer

of the protected population from the occupied territory and the transfer into the occupied

territory of nationals of the occupying Power. Moreover, Israel’s acts of property appropriation,

destruction, pillage and forcible transfer, among others, may amount to grave breaches of the

Geneva Conventions, war crimes and crimes against humanity. In this vein, the Prosecutor of

the International Criminal Court announced in December 2019 the opening of an investigation

into the Situation in Palestine, concluding that “there was a reasonable basis to believe that war

crimes have been or are being committed in the West Bank, including East Jerusalem, and the

Gaza Strip”.

479

At the Pre-Trial Chamber the Prosecutor further argued that Israel’s “imposition

of certain unlawful measures (including the expansion of settlements and the construction of

the barrier and its associated regime in the West Bank, including East Jerusalem)” had

“severely impaired” the exercise of the Palestinian people’s right to self-determination.

480

In this regard, Security Council resolution 446 (1979) determined that “the policy and practices

of Israel in establishing settlements in the Palestinian and other Arab territories occupied since

1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive,

just and lasting peace in the Middle East”.

481

More recently, Security Council resolution 2334

(2016) reaffirmed that “the establishment by Israel of settlements in the Palestinian territory

occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant

violation under international law and a major obstacle to the achievement of the two-State

477

State of Palestine, Palestinian Central Bureau of Statistics, “Number of Settlers in the Israeli Settlements in

the West Bank by Region”, 1986–2021.

478

Basic Law: Israel – The Nation State of the Jewish People, 5778-2018.

479

International Criminal Court, The Office of the Prosecutor, Situation in Palestine, Summary of Preliminary

Examination Findings, (2020) para. 1.

480

International Criminal Court, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s

Territorial Jurisdiction in Palestine, No. ICC-01/18 (22 January 2022) para. 9.

481

United Nations Security Council resolution 446 (1976).

- 71 -

solution”.

482

Likewise, in the Wall advisory opinion, the International Court of Justice

concluded that “the Israeli settlements in the Occupied Palestinian Territory (including East

Jerusalem) have been established in breach of international law”.

483

Further, the International

Court of Justice found that the construction of the Wall, which deviates from the Green Line,

“severely impedes the exercise by the Palestinian people of its right to self-determination”.

484

Similarly, the United Nations Human Rights Council considered that the Wall made “the two-

State solution physically impossible to implement”.

485

Geographically, the territorial components of occupied Palestine – the West Bank, including

Jerusalem, and the Gaza Strip – have been fragmented and segregated administratively from

each other. Israel exercises full civil and military control over Area C, an area comprising 61

per cent of the West Bank. Area C surrounds and fragments densely populated Palestinian cities

and towns into an archipelago of disconnected islands, systematically cutting them off from

each other. Israel further entrenches fragmentation by constructing segregating infrastructure

such as the Wall, settlements and “bypass roads connecting the settlements to each other and

to the Israeli transportation system”, and by restricting Palestinian access physically and

administratively via “roadblocks, exclusive zoning laws, restricted areas and military no-go

zones”.

486

Concomitantly, Israel’s zoning of Palestinian immoveable property for residential,

agricultural, industrial and tourist settlements; nature and archaeological reserves; and military

firing zones has seen the appropriation of over 100,000 hectares of private and public

Palestinian land and the demolition of over 50,000 Palestinian homes since 1967.

487

Across

occupied Palestine, Israel has granted leases and licences for the exploitation of Palestinian

quarries, Dead Sea minerals, oil, gas and water resources, acts which may amount to acts of

pillage in breach of Articles 47 and 55 of the Hague Regulations (1907) and Article 33 of the

Fourth Geneva Convention (1949).

488

Israel administers the West Bank (not including East Jerusalem) under military rule,

489

and

separately administers Palestinians in occupied East Jerusalem as “permanent residents” (a

temporary and revocable status) in territory it has effectively annexed in contravention of

international law.

490

Meanwhile, the Gaza Strip is treated as a “hostile entity” where over two

million Palestinians, denied their freedom of movement, have been held since 2007 under a

military siege and closure of land, sea and air.

491

The economic loss to the Gaza Strip alone

between 2007 and 2018 from the continued military closure amounts to $16.7 billion, which

has brought the Gaza Strip to the brink of economic collapse.

492

Crucially, Security Council

482

United Nations Security Council resolution 2334 (2016) para. 1.

483

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 120.

484

Ibid., para. 122.

485

UN HRC resolution 37/36 (2018), preamble.

486

United Nations General Assembly, Situation of human rights in the Palestinian territories occupied since

1967, A/71/554 (19 October 2016) para. 41.

487

Amnesty International, Israel’s Occupation: 50 Years of Dispossession, 2017.

488

ESCWA, Palestine Under Occupation III, Mapping Israel’s Policies and Practices and their Economic

Repercussions in the Occupied Palestinian Territory (2022) vii.

489

United Nations Human Rights Council, Consideration of Reports Submitted by States Parties under Article

40 of the Covenant Concluding Observations of the Human Rights Committee, Israel (29 July 2010) para. 5.

490

CERD/C/ISR/CO/17-19, Concluding Observations on the combined seventeenth to nineteenth reports of

Israel, (12 December 2019) para. 15.

491

UN, “The Question of Palestine, Israel’s Decision to Designate Gaza ‘Hostile Entity’” – Russia’s Foreign

Ministry statement/Non-UN document, Statement by Mikhail Kamynin, the Spokesman of Russia’s Ministry of

Foreign Affairs, “Regarding Israel’s Decision to Declare Gaza a ‘Hostile Entity’” (20 September 2007).

492

“UN Report Finds Gaza Suffered $16.7 Billion Loss From Siege and Occupation” United Nations News, 25

November 2020.

- 72 -

resolution 1860 (2009) stresses “that the Gaza Strip constitutes an integral part of the territory

occupied in 1967 and will be a part of the Palestinian state”.

493

Israel’s alteration of facts on the ground and erasure of the Palestinian presence are carried out

to compromise Palestine’s viability as an independent State. For example, Israeli military

orders prevent Palestinian symbols from being displayed, in a repression of Palestinian identity.

In this vein, Military Order 101 dictates that Palestinians in the occupied territory may not

“hold, wave, display or affix flags or political symbols, except in accordance with a permit of

the military commander”.

494

Likewise, Palestinian presence in the occupied territory is

gradually eroded as Israel renames Palestinian villages and roads into Hebrew.

495

Further, the

Budgets Foundations Law (Amendment No. 40) authorizes Israel’s Minister of Finance to

reduce public funding to institutions that fail to commemorate “Israel’s Independence Day or

the day on which the state was established as a day of mourning” and to those institutions that

reject “the existence of Israel as a Jewish and democratic state”.

496

This essentially aims at de-

funding Palestinian institutions in Israel and occupied Jerusalem. Meanwhile, Israel’s repeated

attacks on the sacred Al-Aqsa Mosque, its facilitation of settler access into the Al-Aqsa

compound,

497

and its deliberate restrictions on Holy Easter Sunday ceremonies at the Church

of the Holy Sepulchre

498

underscore its targeted erasure of Palestinian Muslim and Christian

presence from the City.

Since 1967, Israel, through its laws, policies and practices, has radically altered the

demography of occupied Palestine, forcibly displacing the protected population, both directly

– through house demolitions, residency revocations, and deportations – and indirectly, through

the imposition of coercive measures to force transfer.

499

Since 2009, the demolition of 9,509

structures in the West Bank has resulted in the displacement of 13,739 Palestinians.

500

Under

the 2004 Jerusalem Local Outline Plan 2000, Israel aimed to achieve a “demographic balance”

of 70 per cent Jews and 30 per cent “Arabs” in Jerusalem by the year 2020.

501

Towards this

end, since 1997, Israel has revoked the residencies of 14,643 Palestinians, forcing their transfer

from Jerusalem.

502

At the same time, Israel systematically denies the right of Palestinian

refugees to return to their homes under its Entry into Israel Law (1952) and Law of Return

(1950) in addition to restricting entry to foreigners, including for reasons of family unification,

under its Entry Procedure (2022).

503

Today, some seven million Palestinian refugees are denied

their right of return, including 450,000 Palestinians displaced as refugees during the Naksa

493

United Nations Security Council resolution 1860 (2009).

494

Israeli Military Order No 101, Order Regarding Prohibition of Incitement and Hostile Propaganda Actions

(27 August 1967); “Israeli Bill to Ban Palestine Flag,” Al-Arabiya (20 May 2020).

495

Nur Masalha, The Palestine Nakba: Decolonising History, Narrating the Subaltern, Reclaiming Memory

(Zed Books 2012).

496

Budget Foundations Law (Amendment No. 40), 5771-2011

497

United Nations, “Israel: United Nations Expert Condemns Brutal Attacks on Palestinians at Al-Aqsa

Mosque” (6 April 2023).

498

United Nations, “Israel-Palestine: United Nations Envoy Calls for Greater Effort Towards Peace Amid

Mounting Violence” (25 April 2023); United Nations Security Council, “Status Quo of Jerusalem’s Holy Sites

Must Be Upheld, Special Middle East Coordinator Tells Security Council, as Speakers Express Alarm over

Recent Violent Clashes” SC/14869 (25 April 2021).

499

UN Division for Palestinian Rights, Bulletin on Action by the United Nations System and Intergovernmental

Organisations Relevant to the Question of Palestine, October 2022, volume XLV, Bulletin No. 10.

500

OCHA, Data on Demolition and Displacement in the West Bank (24 May 2023).

501

Jerusalem Municipality, Local Outline Plan Jerusalem 2000: Report No. 4 (August 2004).

502

B’Tselem, Statistics on Revocation of Residency in East Jerusalem (19 April 2023).

503

Entry into Israel Law 5712-1952; The Law of Return 5710 (1950); Procedure for entrance and residence of

foreigners in the Judea and Samaria Area, 2022.

- 73 -

arising from the 1967 Six Day War.

504

Accordingly, in 2013, a United Nations Fact-Finding

Mission concluded that:

the right to self-determination of the Palestinian people, including the right to determine

how to implement self-determination, the right to have a demographic and territorial

presence in the Occupied Palestinian Territory and the right to permanent sovereignty

over natural resources, is clearly being violated by Israel through the existence and

ongoing expansion of the settlements.

505

At the same time, Israel interferes with Palestinian democratic processes, closing the PLO

headquarters in Jerusalem, arresting Palestinian parliamentarians, and launching military

attacks on Palestinian Legislative Council buildings and Palestinian cultural properties,

including the raid, closure and pillage of archives from Orient House in Jerusalem, which was

the former PLO headquarters and the potential seat of the capital of an independent Palestinian

State.

506

In the meantime, Israel amended its Entry into Israel law to apply a penalty of

revocation of Jerusalem residencies for “breach of allegiance [to Israel]”, a provision which

Israel has applied to Palestinian parliamentarians elected to the Palestinian Legislative

Council.

507

Notably, Article 45 of the Hague Regulations (1907) and Article 68(3) of the Fourth

Geneva Convention (1949) strictly prohibit the occupying Power from forcing the occupied

population to swear allegiance.

508

In May 2022, the United Nations Commission of Inquiry

reported on the continuation of Israel’s systematic control over the Palestinian democratic

process, including the detention of elected political representatives and members of the

Government, the collective punishment of the Palestinian population for the democratic

election of Hamas in 2006, and the military attacks on the Palestinian Legislative Council

buildings in Gaza in 2009.

509

The Commission of Inquiry concluded that “the cumulative

impact of those policies and actions made prospects for political and economic integration

between Gaza and the West Bank more remote”.

510

Likewise, Israel’s systematic repression of

civil and political rights across occupied Palestine, including the lethal suppression of

demonstrations,

511

the designation of Palestinian human rights organizations as “terror”

organizations,

512

mass arrests and raids,

513

and its arbitrary regime of administrative

504

State of Palestine, “It Is Apartheid: The Reality of Israel’s Colonial Occupation of Palestine” (June 2021) 18.

505

United Nations Human Rights Council, “Independent International Fact-finding Mission to Investigate the

Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the

Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem” A/HRC/22/63, (7

February 2013) para. 38.

506

Yara Hawari, “Destroying Palestinian Jerusalem, One Institution at a Time” Al Shabaka, 29 October 2020.

507

HCJ 7803/06, Khalid Abu Arafeh, et al. v. Minister of Interior (2006). Since then, the provision has been

employed to revoke the residency of renowned human rights defender Salah Hammouri. UNHCR, “Comment

by United Nations Human Rights Spokesperson Jeremy Laurence on Deportation of Salah Hammouri from

Occupied Palestinian Territory” (19 December 2022).

508

Knesset, “Knesset Passes Legislation Authorizing Interior Minister to Revoke Permanent Residency Status

over Involvement in Terrorism” (7 March 2018).

509

A/HRC/50/21, “Report of the Independent International Commission of Inquiry on the Occupied Palestinian

Territory, including East Jerusalem, and Israel” (9 May 2022) para. 47.

510

Ibid.

511

A/HRC/50/21, “Report of the Independent International Commission of Inquiry on the Occupied Palestinian

Territory, including East Jerusalem, and Israel” (9 May 2022).

512

UN, “UN experts Condemn Israeli Suppression of Palestinian Human Rights Organizations” (24 August

2022).

513

United Nations Human Rights Council, “Israeli Settlements in the Occupied Palestinian Territory, including

East Jerusalem, and in the Occupied Syrian Golan Report of the United Nations High Commissioner for Human

Rights” A/HRC/49/85 (21 February 2012) para. 30.

- 74 -

detentions,

514

ensures that the Palestinian people are systematically prevented from mobilizing

to exercise collectively their right to self-determination.

In summation, Israel’s prolonged occupation of Palestine decades after the Security Council

demanded its withdrawal in 1967, and decades after the conclusion of peace agreements with

Egypt and Jordan, has been characterized by a myriad of illegal acts, including settlement

construction, alteration of the demography of the occupied territory, and the denial of civil and

political rights to the occupied population. Such settlement policies and practices are instituted

in a manner that denies the collective right of the Palestinian people as a whole to self-

determination – a peremptory norm of international law – and that concomitantly is indicative

of an unlawfully administered occupation breaching the principles of proportionality and

necessity for a legitimate act of self-defence.

3. Israel’s occupation as an act of apartheid and violation of jus cogens norm

This section examines how Israel’s administration of occupied Palestine is carried out in breach

of the prohibition of racial discrimination and apartheid, a peremptory norm of international

law. Notably, Israel applies discriminatory apartheid policies and practices against Palestinians

on both sides of the Green Line. Although the core framework institutionalizing the apartheid

regime was established in the years after 1948, the segregationist laws, policies and practices

continued in the form of military orders in occupied Palestine beginning in 1967.

3.1 The legal framework of apartheid

Notably, the foundational laws of the State of Israel provide the legal framework for Israeli

Jewish domination over the Palestinian people. Under the Apartheid Convention, inhuman acts

of apartheid include “legislative measures … calculated to prevent a racial group or groups

from participation in the political, social, economic and cultural life of the country” and

“legislative measures, designed to divide the population along racial lines by the creation of

separate reserves and ghettos for the members of a racial group or groups”.

515

That Israel is

constitutionally established as a Jewish State is reflected in Israel’s Basic Law: Human Dignity

and Liberty (1992) which espouses “the values of the State of Israel as a Jewish and democratic

state”.

516

A more recent 2018 amendment to the Basic Law provides that “[t]he State of Israel

is the nation state of the Jewish People in which it realizes its natural, cultural, religious and

historical right to self-determination. The realization of the right to national self-determination

in the State of Israel is exclusive to the Jewish People”.

517

Thereupon Prime Minister

Netanyahu announced, “Israel is not a state of all its citizens. According to the Nation-State

Law that we passed, Israel is the nation-state of the Jewish people – and its alone”.

518

Israel systematically denies the right of return to Palestinian refugees and exiles in the diaspora

in order to engineer and maintain the demographic of an Israeli Jewish majority. Under Israel’s

514

United Nations, “Special Rapporteurs Demand Accountability for Death of Khader Adnan and Mass

Arbitrary Detention of Palestinians” (3 May 2023). “We cannot separate Israel’s carceral policies from the

colonial nature of its occupation, intended to control and subjugate all Palestinians in the territory Israel wants to

control,” the United Nations experts said. “The systematic practice of administrative detention, is tantamount to

a war crime of wilfully depriving protected persons of the rights of fair and regular trial.”

515

Article II, International Convention on the Suppression and Punishment of the Crime of Apartheid, General

Assembly resolution 3068 (XXVIII)), 28 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974), 1015

U.N.T.S. 243, entered into force July 18, 1976.

516

Basic Law: Human Dignity and Liberty, 1992, art. 1.

517

Basic Law: Israel – The Nation State of the Jewish People (Originally adopted in 5778-2018, arts. 1(b), 1(c).

518

Jonathan Ofir, “Netanyahu Tells the Truth: ‘Israel is Not a State of all its Citizens’” Mondoweiss (11 March

2019).

- 75 -

Law of Return (1950), “every Jew has the right to come to this country as an oleh” and Israeli

citizenship is “granted to every Jew who has expressed his desire to settle in Israel”.

519

Jerusalem, which has been de jure annexed, Israel applies a temporary residency status to

Palestinians therein, who must continually prove that their centre of life is Jerusalem, otherwise

their residency will be revoked.

520

Palestinians from the West Bank (not including East

Jerusalem) and the Gaza Strip are prevented from acquiring citizenship and full residency rights

and are effectively prevented from family unification under the Citizenship and Entry into

Israel Law (Temporary Provision) (2003), which provides:

[T]he Minister of the Interior shall not grant the inhabitant of an area (the West Bank

and the Gaza Strip) citizenship on the basis of the Citizenship law, and shall not give

him a license to reside in Israel on the basis of the Entry into Israel Law, and the Area

Commander shall not grant a said inhabitant, a permit to stay in Israel, on the basis with

the security legislation in the area.

521

The quest to engineer a Jewish majority demographic and reduce and remove Palestinians has

been advanced by successive governments. In 2003, Prime Minister Olmert suggested that the

“formula for the parameters of a unilateral solution are: to maximize the number of Jews; to

minimize the number of Palestinians”.

522

Prime Minister Yitzhak Rabin similarly warned that

“the red line for Arabs is 20% of the population, that must not be gone over… I want to preserve

the Jewish character of the state of Israel”.

523

Article II(d) of the Apartheid Convention provides that apartheid measures include “the

expropriation of landed property belonging to a racial group or groups or to members

thereof”.

524

Article 4 of the Absentees’ Property Law, 5710-1950, transferred rights over the

absentee property of Palestinian refugees and exiles to the Custodian, a Chairperson appointed

by Israel’s Minister of Finance.

525

Article 19(a)(1) of the Absentees’ Property Law provided

for the transfer of immoveable Palestinian property to a “Development Authority established

under a law of the Knesset”.

526

The Land Acquisition Law, 5713-1953, facilitated the alienation

of confiscated Palestinian lands to various Israeli State institutions, including the Development

Authority. At the same time, the Minister for Finance was granted competence to confiscate

lands for public purposes under the Land (Acquisition for Public Purposes) Ordinance –

Amendment No. 10, a law that was used primarily to vest ownership of Palestinian lands in the

State of Israel.

527

Parastatal organizations such as the Jewish Agency and the World Zionist Organization are

chartered to carry out material discrimination including through the allocation of confiscated

Palestinian lands to Israeli Jews.

528

For example, Article 1 of Israel’s Basic Law, Israel Lands,

519

Law of Return, 5710-1950 (5 July 1950).

520

Entry into Israel Law, 5712-1952, art. 1(b).

521

The Citizenship and Entry into Israel Law (temporary provision), 5763-2003.

522

David Landau, “Maximum Jews, Minimum Palestinians”, Haaretz, 13 November 2003.

523

Rhoda Ann Kanaaneh, Birthing the Nation: Strategies of Palestinian Women in Israel (University of

California Press 2002) p. 50.

524

International Convention on the Suppression and Punishment of the Crime of Apartheid, General Assembly

resolution 3068 (XXVIII)), 28 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974), 1015 U.N.T.S. 243,

entered into force July 18, 1976, art. II(d).

525

Absentees’ Property Law (5710-1950), arts. 2(a), 4.

526

Ibid., art. 19(a)(1).

527

Land (Acquisition for Public Purposes) Ordinance – Amendment No. 10.

528

The Constitution of the World Zionist Organization and the Regulations for its Implementation (Updated

November 2019). Article 2 of the World Zionist Organization’s Constitution provides “the aim of Zionism is to

create for the Jewish people a home in Eretz Israel secured by public law”.

- 76 -

prevents the transfer of “[t]he ownership of Israel’s Lands, which is the real estate belonging

to the State, the Development Authority, or the Jewish National Fund … whether by means of

sale, or in any other manner”.

529

At the same time, Israeli Jews can pursue ownership claims to

Palestinian residential properties in occupied East Jerusalem under the Legal and

Administrative Matters Law (1970), despite the protection of private property in occupied

territory against confiscation under Article 46 of the Hague Regulations (1907).

530

Meanwhile,

the Military Commander issues military orders for the appropriation of public Palestinian

property as State lands, and private Palestinian property for, inter alia, nature reserves,

archaeological reserves, military training zones, the construction of the Wall, settlements and

settlement roads, and infrastructure.

531

Israel operates a “comprehensive and dual” legal system in occupied Palestine, where Israeli

Jews enjoy full human rights under the application of Israeli domestic law and Palestinians are

segregated and subjugated under repressive military rule.

532

Treated like their counterparts in

Tel Aviv, Israeli Jewish settlers “have the same access to health insurance, national insurance,

social services, education, regular municipal services and the right of entry into and out of

Israel and around much of the West Bank”, while receiving government incentives to live in

the settlements.

533

Meanwhile Palestinians are separated from each other under different

administrative domains: for example, Palestinians in Gaza are held under siege as a “hostile

entity”, Palestinians in Jerusalem are held under a revocable residency status, and Palestinians

in the West Bank are held under occupation law, with freedom of movement substantially

curtailed by the Wall and its administrative regime.

534

The occupied territory is physically

fragmented by settlements, a network of settler-only roads, a massive annexationist wall and a

military surveillance system of watchtowers and checkpoints. The Palestinian population,

living in pockets of cities and villages, are completely surrounded and cut off by the settlement

infrastructure, turning the Palestinian Authority–administered areas into Bantustan-style

enclaves.

535

3.2 Recognition of Israel’s apartheid

That the occupation of the Palestinian territory is taking place in the context of an

institutionalized regime of racial discrimination and domination of one racial group over

another, amounting to apartheid, has been catalogued by the United Nations Committee on the

529

Basic Law: Israel Lands 5720 – 1960, art. 1.

530

United Nations, “Amid International Inaction, Israel’s Systematic ‘Demographic Engineering’ Thwarting

Palestinians’ Ability to Pursue Justice, Speakers Tell International Conference”; “East Jerusalem Crisis ‘Far

from Over’, Under-Secretary-General Says, Warning Threats to Status Quo in Holy City Can Have Severe

Global Repercussions” (1 July 2021).

531

A/HRC/52/76 “Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the

Occupied Syrian Golan Report of the United Nations High Commissioner for Human Rights”, (15 March 2023)

p. 7.

532

A/HRC/49/87, “Report of the Special Rapporteur on the situation of human rights in the Palestinian

territories occupied since 1967, Michael Lynk” (12 August 2022) para. 38.

533

Ibid., para. 39

534

Israel Ministry of Foreign Affairs, “Security Cabinet Declares Gaza Hostile Territory” (19 July 2007); United

Nations Economic and Social Commission for Western Asia, “Israeli Practices towards the Palestinian People

and the Question of Apartheid” (2017) United Nations Doc E/ESCWA/ECRI/2017/1.

535

The State of Palestine, “It Is Apartheid, The Reality of Israel’s Colonial Occupation of Palestine” (June

2021) 9; Al Mezan Centre for Human Rights, “The Gaza Bantustan – Israeli Apartheid in the Gaza Strip” (29

November 2021).

- 77 -

Elimination of Racial Discrimination;

536

United Nations Special Rapporteurs;

537

and prominent

Palestinian,

538

Israeli,

539

and international civil society organizations;

540

and recognized as such

by a growing cohort of Third States, including, among others, Namibia,

541

South Africa

542

and

the 57 Member States of the Organisation of Islamic Cooperation.

543

The relationship between

the apartheid and occupation regimes is succinctly contextualized by the State of Palestine,

which has drawn a distinction between the discriminatory framework of laws and regulations

denying Palestinian rights in Israel in 1948, and the continuation of the discriminatory and

settler-colonialist enterprise facilitated by military orders in 1967 in occupied Palestine.

544

The

State of Palestine report clarifies that “[a]lthough prolonged occupation has enabled Israel to

retain the occupied Palestinian population under its effective military control while entrenching

Israeli-Jewish national domination, this is merely one fragment of a much broader apartheid

regime spanning both sides of the Green Line”.

545

Further, in this vein, United Nations Special

Rapporteur Francesca Albanese has warned against limitations on the recognition of apartheid,

which must address “the experience of the Palestinian people in its entirety and in their unity

as a people, including those who were displaced, denationalized and dispossessed in 1947–

1949”.

546

From the aforementioned, there is a reasonable basis to conclude that Israel is carrying out

inhumane acts of apartheid in breach of Article 2(c) of the Apartheid Convention. The latter

defines apartheid as:

[a]ny legislative measures and other measures calculated to prevent a racial group or

groups from participation in the political, social, economic and cultural life of the

country and the deliberate creation of conditions preventing the full development of

such a group or groups, in particular by denying to members of a racial group or groups

basic human rights and freedoms.

547

536

CERD/C/ISR/CO/17-19, Concluding Observations on the Combined Seventeenth to Nineteenth Reports of

Israel (27 January 2020) para. 23.

537

UNHCR, “Israel’s 55-year Occupation of Palestinian Territory is Apartheid – United Nations Human Rights

Expert” (25 March 2022).

538

Al-Haq et al., Israeli Apartheid: Tool of Zionist Settler Colonialism (29 November 2022); Al Mezan, The

Gaza Bantustan – Israeli Apartheid in the Gaza Strip (29 November 2021); Addameer and Harvard Human

Rights Clinic, Joint Submission on Apartheid to the UN Independent Commission of Inquiry on the Occupied

Palestinian Territory and Israel (3 March 2022);

539

Yesh Din, The Occupation of the West Bank and the Crime of Apartheid: Legal Opinion (9 July 2020);

B’Tselem, A regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This is Apartheid

(12 January 2021).

540

Human Rights Watch, A Threshold Crossed, Israeli Authorities and the Crimes of Apartheid and Persecution

(27 April 2021); Amnesty International, Israel’s Apartheid Against Palestinians A Look Into Decades of

Oppression and Domination (2022); Diakonia, Expert Opinion of Dr Miles Jackson: Occupation and the

Prohibition of Apartheid (23 March 2021).

541

Statement by H.E. Penda Naanda, Ambassador/Permanent Representative, 43

Session of the Human Rights

Council (General Debate Item 9: Racism, racial discrimination, xenophobia and related forms of intolerance,

follow-up to and implementation of the Durban Declaration and Programme of Action, including the reports of

the Intergovernmental Working Group and the High Commissioner) 16 June 2020.

542

South African National Statement General Debate on Item 7, 43

Session of the Human Rights Council (15–

16 June 2020).

543

United Nations Commission on Human Rights, “Israeli Practices in Occupied Palestinian Territories, Form

of Apartheid Fourth Committee Told, As Debate Continues” (12 November 2002).

544

The State of Palestine, “It Is Apartheid, The Reality of Israel’s Colonial Occupation of Palestine” (June

2021) pp. 9–12.

545

Ibid., p. 9.

546

A/77/356, “Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories

Occupied Since 1967, Francesca Albanese” (21 September 2022) para. 10(a).

547

United Nations General Assembly, International Convention on the Suppression and Punishment of the

Crime of Apartheid, 30 November 1973, A/RES/3068(XXVIII), art. 2(c).

- 78 -

As such, there are grounds to consider that the establishment de facto of a prolonged and

intentionally indefinite occupation regime, applying limited military laws, which by their

nature subjugate the protected occupied population to the military interests of the occupying

Power, may itself amount to an act of apartheid. At a minimum, the continuing operation of a

discriminatory apartheid regime in occupied Palestine amounts to a breach of a jus cogens norm

of international law.

C. Israel’s administration of occupied Palestine breaches the right of the Palestinian

people to external self-determination

It has been established that Israel’s occupation constitutes a continuing use of force arising

from an illegal act of aggression. This section illustrates how Israel’s continued illegal

occupation of Palestinian territory breaches the right to external self-determination of the

Palestinian people. Such includes the right to full independence and statehood in Palestine, a

Mandate territory held under “sacred trust”. In doing so, this section refers to the catalogue of

United Nations resolutions recognizing the right of the Palestinian people to self-determination,

national independence and sovereignty.

1. Denial of Palestinian self-determination is a breach of “sacred trust”

Palestine, as a Class A Mandate, similar to Iraq, Syria and Lebanon, had “reached a stage of

development where their existence as independent nations can be provisionally recognised

subject to the rendering of administrative advice and assistance by a Mandatory until such time

as they are able to stand alone”.

548

While the subsequent provision of Article 73(b) of the

United Nations Charter, adopted in 1945, does not explicitly mention the right of self-

determination, it does recognize, as part of the “sacred trust”, the obligations of United Nations

Member States towards peoples administered under Mandate “to develop self-government, to

take due account of the political aspirations of the peoples, and to assist them in the progressive

development of their free political institutions, according to the particular circumstances of

each territory and its peoples and their varying stages of advancement”.

549

Later, the

Declaration on the Independence of Colonial Peoples required that “immediate steps shall be

taken in Trust and Non-Self-Governing Territories… to transfer all powers to the peoples of

those territories, without any conditions of reservations, in accordance with their freely

expressed will and desire”.

550

In the South West Africa advisory opinion, the International Court of Justice advanced that “the

ultimate objective of the sacred trust was the self-determination and the independence of the

people concerned”.

551

Significantly, in the Wall advisory opinion, the International Court of

Justice recalled that Palestine, at the end of World War I, was a class “A” Mandate under the

administration of Great Britain pursuant to Article 22, paragraph 4 of the Covenant of the

548

Covenant of the League of Nations, art. 22.

549

Charter of the United Nations (1945) art. 73(b); Karen Knop, Diversity and Self-Determination in

International Law (CUP 2004) p. 200.

550

United Nations General Assembly resolution 1514 (XV) (1960) Declaration on the Granting of Independence

to Colonial Countries and Peoples, para. 3; See United Nations, “The Right to Self-determination: Historical and

Current Development on the Basis of United Nations Instruments, study prepared by Aureliu Cristescu” Sales

No. E.80.XIV.3; Yearbook of the International Law Commission (1988) Volume II Part One, draft Code of

Crimes against the Peace and Security of Mankind, p. 201.

551

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) para. 16.

- 79 -

League of Nations.

552

Drawing on its advisory opinion on the International Status of South

West Africa, the Court further recalled that the Mandates were established as a “sacred trust of

civilization” based on two principles: non-annexation; and the principle of “the well-being and

development of … peoples [not yet able to govern themselves]”.

553

There the International

Court of Justice reasoned that “‘the ultimate objective of the sacred trust’ referred to in Article

22, paragraph 1, of the Covenant of the League of Nations ‘was the self-determination … of

the peoples concerned’”.

554

Judge Koroma, in a separate opinion to the Wall case, stressed the importance of the obligations

that the international community as a whole continues to bear “towards the Palestinian people

as a former mandated territory, on whose behalf the international community holds a ‘sacred

trust’, not to recognize any unilateral change in the status of the territory”.

555

Any pre-emptive

arguments that Palestine’s status prior to Israel’s occupation in 1967 might be considered terra

nullius are resolutely dismissed by Judge Al-Khasawneh as being “incompatible with the

territories’ status as a former mandatory territory”.

556

This is consistent with the International

Court of Justice findings in South West Africa stressing the important safeguards inherent in

Article 22, which provides no exception to considerations of geographical contiguity.

557

Judge

Elaraby postulates that “[t]he only limitation imposed by the League’s Covenant upon the

sovereignty and full independence of the people of Palestine was the temporary tutelage

entrusted to the Mandatory Power”.

558

Therefore, axiomatically, “when the stage of rendering

administrative advice and assistance had been concluded and the Mandate had come to an end,

Palestine would be independent as of that date, since its provisional independence as a nation

was already legally acknowledged by the Covenant”.

559

While following the Mandate, the Palestinian territory notably did not come under the

international administration of the United Nations Trusteeship Council, General Assembly

resolution 181, which provided for the partition of Mandatory Palestine, foresaw a role for the

Trusteeship Council, which would be “designated to discharge the responsibilities of the

Administering Authority on behalf of the United Nations” over the City of Jerusalem as a

corpus separatum.

560

However, since 1948, Israel has extended its effective control over the

territory demarcated for the Palestinian State under General Assembly resolution 181, in

addition to the Palestinian territory occupied since 1967. More recently, Human Rights Council

resolution 49/28 on the Right of the Palestinian People to Self-Determination, recalled, among

others, “General Assembly resolutions 181 A and B (II) of 29 November 1947 and 194 (III) of

552

Advisory International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 70.

553

Ibid.

554

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) paras. 52–53; International Court of Justice, Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)

International Court of Justice Reports 136 (2004) para. 88.

555

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) Separate Opinion of Judge

Koroma, para. 7.

556

Ibid., Separate Opinion of Judge Al-Khasawneh, p. 237.

557

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) para. 154.

558

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) Separate Opinion of Judge

Elaraby, p. 249.

559

Ibid.

560

United Nations General Assembly resolution 181 (1947) part III.

- 80 -

11 December 1948 … that confirm and define the inalienable rights of the Palestinian people,

particularly their right to self-determination”.

561

This is an important continued recognition of

the right of the Palestinian people to self-determination in the territory beyond that occupied in

1967, as preserved in the application of the uti possidetis principle. In international practice,

the frontiers of a new State may differ from the colony which it replaces.

562

Israel’s arguments pointing to a missing sovereign in occupied Palestine are inconsistent with

the continued protection of the territory as a “sacred trust”. For example, former Israeli

Attorney General Meir Shamgar argues that the Geneva Conventions do not apply because of

the “missing reversioner”.

563

He suggests that the previous governing authorities in occupied

Palestine – Egypt and Jordan – were not the legitimate sovereigns of the territory and therefore

“those rules of belligerent occupation directed to safeguarding that sovereign’s reversionary

rights have no application”.

564

This position has been met with international opprobrium and

resolutely dismissed as a misinterpretation of the law, which remains applicable in toto to the

occupied territories.

565

The idea that either occupied territories or former Mandate territories

would revert back to a colonial status was dispositively dispensed with in the South West Africa

advisory opinion. The International Court of Justice explained that “[t]o accept the contention

of the Government of South Africa on this point would have entailed the reversion of mandated

territories to colonial status, and the virtual replacement of the mandates régime by annexation,

so determinedly excluded in 1920.”

566

Even Yehuda Blum admits that his thesis on the

“missing reversioner”, if published today, would be changed in light of the agreements

concluded between the PLO and Israel, namely the Israel–PLO Declaration of Principles of

1993.

567

561

United Nations Human Rights Council resolution 49/28 (11 April 2022) Right of the Palestinian people to

self-determination A/HRC/RES/49/28, preamble.

562

International Court of Justice, Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali)

(Judgment) International Court of Justice Reports 1986 p. 554, Separate Opinion of Judge Luchaire, p. 653.

563

Shamgar, M., “The Observance of International Law in the Administered Territories” Israeli Yearbook on

Human Rights, vol. 1 (1971) pp. 262–77.

564

Yehuda Blum, “The Missing Reversioner: Reflections on the Status of Judea and Samaria” Israeli Law

Review (1968) 279.

565

“Applicability of the Fourth Convention: the ICRC is of the opinion that it is applicable in toto in the three

occupied territories and cannot accept that a duly ratified international treaty may be suspended at the wish of

one of the parties.” ICRC, Annual Report 1975, p. 22; United Nations General Assembly resolution 72/85

(December 2017); International Court of Justice, Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 75;

United Nations General Assembly resolution 73/97, Applicability of the Geneva Convention relative to the

Protection of Civilian Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory,

including East Jerusalem, and the other occupied Arab territories (7 December 2018); While Israel has not

signed or ratified the Additional Protocols to the Geneva Conventions, the customary provisions are binding and

directly applicable. HCJ 9132/07 Jaber Al-Bassiouni Ahmed and others v. Prime Minister and Minister of

Defence (27 January 2008) paras. 14–15; On the customary status of Additional Protocol I, see Reports of

International Arbitral Awards, Eritrea-Ethiopia Claims Commission – Partial Award: Western Front, Aerial

Bombardment and Related Claims – Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26, volume XXVI, 19

December 2005, pp. 291–349, para. 14.

566

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 21.

567

Yehuda Z. Blum, “The Status of Judea and Samaria Revisited: A Response to Eyal Benvenisti”, Isr. L. REV.,

vol. 51 (2018) pp. 165, 168.

- 81 -

2. The continuing right of the Palestinian people to an independent state

Colonialism, in all its manifestations, is prohibited under the Declaration on the Granting of

Independence to Colonial Countries and Peoples (1960), which is internationally binding as

jus cogens.

568

The Declaration requires that:

[i]mmediate steps shall be taken, in Trust and Non-Self-Governing Territories or all

other territories which have not yet attained independence, to transfer all powers to the

peoples of those territories, without any conditions or reservations, in accordance with

their freely expressed will and desire, without any distinction as to race, creed or colour,

in order to enable them to enjoy complete independence and freedom.

569

In this vein, a 1980 report prepared by United Nations Special Rapporteur of the Sub-

Commission on the Prevention of Discrimination and Protection of Minorities of the

Commission on Human Rights, Hector Gros Espiell, lists Palestine among the cases

“concerning the right to self-determination of peoples under colonial or alien domination”

which have not yet been settled.

570

There is clear and unequivocal agreement in the myriad of international resolutions on

Palestine, spanning decades, that the Palestinian people have a right to a sovereign independent

State.

571

For example, General Assembly resolution 3236 (1974) recognized both the right of

the Palestinian people to self-determination without external interference and “the right to

national independence and sovereignty”.

572

General Assembly resolution 32/20 (1977)

condemned Israel’s “illegal occupation” and the three-decades-long deprivation of the

Palestinian people of “the exercise of their national inalienable rights”, which essentially

recognizes the continuing right of external self-determination from 1948.

573

This General

Assembly resolution reaffirmed at a minimum “the right of the Palestinian people to self-

determination and to independence in their State of Palestine on the Palestinian territory

occupied since 1967”, and accordingly admitted the State of Palestine as a non-Member

observer to the United Nations.

574

Likewise, United Nations Human Rights Council resolution

34/29 “[r]eaffirms the inalienable, permanent and unqualified right of the Palestinian people to

568

United Nations General Assembly resolution 1514 (XV) (14 December 1960).

569

Ibid., para. 5.

570

Hector Gros Espiell, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and

Protection of Minorities, “The Right to Self-Determination Implementation of United Nations Resolutions”

(1980) pp. 48–51.

571

United Nations General Assembly resolution 2535 (XXIV) (1969), part B; United Nations General Assembly

resolution 3236 (XXIX) (1974); United Nations General Assembly resolution 3376 (1975), para. 2(a); United

Nations General Assembly resolution 43/177 (1988), para. 2; United Nations General Assembly resolution

55/87 (2000), para. 1; United Nations General Assembly resolution 58/163 (2003); United Nations General

Assembly resolution 58/292 (2004); United Nations General Assembly resolution 66/17 (2011), para. 21(b);

United Nations General Assembly resolution 67/19 (2012), para. 1; United Nations General Assembly

resolution 70/15 (2015), para. 21(b); United Nations General Assembly resolution 70/141 (2015), para. 1;

United Nations General Assembly resolution 71/23 (2016), para. 22; United Nations General Assembly

resolution 71/95 (2016); United Nations General Assembly resolution 72/14 (2017), para. 24; United Nations

General Assembly resolution 72/160 (2017), para. 1; United Nations General Assembly resolution 73/19 (2018),

para. 22; United Nations General Assembly resolution 73/96 (2018); United Nations General Assembly

resolution 73/158 (2018), para. 1; United Nations General Assembly resolution 77/208 (2022), para. 1; United

Nations General Assembly resolution 77/22 (2022) para. 8.

572

United Nations General Assembly resolution 3236 (XXIX) (1974), para. 1.

573

United Nations General Assembly resolution 32/20 (1977), preamble.

574

United Nations General Assembly 67/19 (2012), paras. 1, 2.

- 82 -

self-determination, including their right to live in freedom, justice and dignity and the right to

their independent State of Palestine”.

575

The renegation of Israel’s agreement with the Palestine Liberation Organization, under the Oslo

Accords, to transition the administration of the occupied territory to full Palestinian control

within five years, is a further manifestation of the violation of the exercise of the Palestinian

people to self-determination.

576

Israel continues to occupy Palestine in breach of the Palestinian

right to external self-determination, even despite the overwhelming support for Palestine’s

admission as a non-Member observer State to the United Nations and recognition as an

independent State.

577

To address the matter of Palestinian self-determination, the General Assembly established the

CEIRPP “to recommend a programme of implementation to enable the Palestinian people to

exercise their inalienable rights to self-determination without external interference, national

independence and sovereignty; and to return to their homes and property from which they had

been displaced”.

578

Furthermore, as the General Assembly has previously asserted, the exercise

of Palestinian self-determination has been denied since 1948.

579

All uses of force since 1948,

including Israel’s occupation of the Palestinian territory, which operate to prevent the exercise

of the Palestinian people, including refugees and exiles in the diaspora, of their inalienable

right to self-determination, are prohibited under the United Nations Charter. Further, Israel’s

de jure and de facto annexation and occupation of the Palestinian territory demarcated for a

Palestinian State under General Assembly resolution 181, and separate to the 1967 territory

held under belligerent occupation, is illegal ab initio as a breach of the sacred trust. In this

respect, the lens on the right of self-determination should be expanded wider than the

Palestinian territory occupied in 1967. This warrants a temporal examination of the continuing

rights since the Mandate, and the consequent successive illegal uses of force operating to quash

the realization of the right of self-determination.

In summation, Palestine is a continuing Mandate territory, whose people have a right to

external self-determination and statehood. Israel’s half-century belligerent occupation breaches

the right of the Palestinian people to exercise full self-determination. Further, it is important to

take into account that Palestine represents a sui generis case in that colonization is ongoing in

the form of Israel’s settlement enterprise. Further, the right of self-determination is vested in

all the Palestinian people, including the seven million refugees and exiles in the diaspora,

Palestinians in the occupied territory and Palestinian citizens of Israel.

D. Concluding remarks

Clearly, the longer an occupation continues, the more difficult it becomes to satisfy the

principles of necessity and proportionality for the continuing use of force. At its simplest level,

the temporal scale of Israel’s occupation of Palestine, now passing the half-century mark, and

575

United Nations Human Rights Council 34/29 Right of the Palestinian People to Self-Determination (24

March 2017).

576

“The Declaration of Principles, signed by the PLO and Israel, contains a set of mutually agreed-upon general

principles regarding the 5-year interim period of Palestinian self-rule. As such, the DOP defers permanent status

issues to the permanent status negotiations, which will begin no later than the third

year of the interim period.

The permanent status agreement reached in these negotiations will take effect after the 5-year interim period.”

Israel Ministry of Foreign Affairs, “Declaration of Principles – Main Points” (13 September 1993).

577

United Nations General Assembly resolution 67/19 (2012).

578

UN The Question of Palestine, UN Committee on the Exercise of the Inalienable Rights of the Palestinian

People.

579

United Nations General Assembly resolution 32/20 (1977), preamble; See also United Nations General

Assembly resolution 3414 (XXX) (5 December 1975), para. 1.

- 83 -

decades after peace agreements have been concluded with the parties to the conflict,

demonstrates that any legitimacy for the continuing occupation as an alleged act of self-defence

has long since expired. Further, the violation of the principles and rules of international

humanitarian law and peremptory norms of international law, including the prohibition on the

acquisition of territory through force through de facto and de jure annexations, the prohibition

on the denial of self-determination, and the prohibition on apartheid, are composite acts which

together indicate, inter alia, a violation of the necessity and proportionality requirements for

self-defence.

580

In particular, Israel’s administration of the Palestinian territory, which is

underpinned by serious and irreversible breaches of peremptory norms of international law,

evinces the magnitude and disproportionate scale of its continuing armed attack against Egypt’s

original alleged blockade and cross-border incursions.

V. Obligations of the international community in bringing illegal

occupations to an end

Given the very serious nature of the violations described above, this section examines the

obligations on Israel, as the wrongdoer, to make reparations to the State of Palestine,

individuals, communities and corporations affected by the myriad of international law

violations, including grave breaches of the Geneva Conventions, breaches of peremptory norms

of international law and the illegal occupation as a continuing act of aggression. Notably, many

of the internationally wrongful acts, such as the imposition of an apartheid regime and the

breach of self-determination as a “sacred trust” of the Palestinian people, are continuing acts

since 1948. In this vein, Israel’s occupation of Resolution 181 territory (beyond the territory

occupied in 1967), is illegal ab initio and also has consequences for the affected Palestinian

people therein. Notably, the Palestinian people include those in the Occupied Palestinian

Territory, Palestinian citizens of Israel, and Palestinian refugees and exiles in the diaspora

denied their right of return. Such territorial and temporal considerations should be at the fore

when considering Israel’s obligations of cessation and non-repetition, and the forms of

reparations, including restitution, compensation and satisfaction.

A. Specific obligations regarding the Israeli occupation

When a state has committed an internationally wrongful act, it is incumbent on the wrongdoer

to make adequate reparations.

581

The classic statement outlining the various forms of

reparations made by the Permanent Court of International Justice in the Chorzów Factory case

“is that reparation must, as far as possible, wipe out all the consequences of that illegal act and

re-establish the situation which would, in all probability, have existed if that act had not been

committed”.

582

The Rainbow Warrior arbitral decision outlined the forms of satisfaction,

noting that:

580

Articles on State Responsibility for Internationally Wrongful Acts (2001), art. 15.

581

Permanent Court of International Justice, Case Concerning the Factory at Chorzów, (Jurisdiction) Permanent

Court of International Justice Reports, Series A, No 9 ( 1927) pp. 4, 21: “It is a principle of international law

that the breach of an engagement involves an obligation to make reparation in an adequate form”; Permanent

Court of International Justice, Case Concerning the Factory at Chorzów, (Merits) Permanent Court of

International Justice Reports, Series A No 17 (1928) pp. 4, 29: “[T]he Court observes that it is a principle of

international law, and even a general conception of law, that any breach of an engagement involves an

obligation to make reparation.”

582

Permanent Court of International Justice, Case Concerning the Factory at Chorzów, (Merits) Permanent

Court of International Justice Reports, Series A No 17 (1928) p. 47.

- 84 -

[t]here is a long established practice of States and International Courts and Tribunals of

using satisfaction as a remedy or form of reparation (in the wide sense) for the breach

of an international obligation. This practice relates particularly to the case of moral or

legal damage done directly to the State, especially as opposed to the case of damage to

persons involving international responsibilities.

583

More specifically, Article 31 of the International Law Commission Articles on the

Responsibility of States for Internationally Wrongful Acts clarifies that:

1. The responsible State is under an obligation to make full reparation for the injury

caused by the internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the

internationally wrongful act of a State.

584

Article 12 requires for State responsibility that the international obligation be in force for that

State. In addition, Article 14(2) speaks to continuing wrongful acts whereby the international

obligation for that State continues in force only in respect of the period during which the act

continues.

585

It is noteworthy here that the denial of the right of self-determination by Israel

through its application of an institutionalized regime of systematic oppression and domination

is a continuing act since 1948. In the draft Commentary, the International Law Commission

examines cases where the obligation is only partly in operation for the State, for acts which

extend over a period of time. This is useful for gauging whether, for example, acts which may

have originally been lawful may, over time, become unlawful due to an obligation which is

partly in operation for the State. The simplest characterization of a continuing unlawful act is

the “unjustified occupation of the territory of another State”.

586

As explained by the European

Court of Human Rights, an act which may be lawful prior to the entry into force of the

Convention, and which continues after the start date of the Convention, may be considered a

continuing violation of the Convention.

587

The same premise is true for an occupation that is

legal jus ad bellum at the outset of hostilities, but whose continuation over time breaches the

necessity and proportionality requirement of Article 51 of the United Nations Charter.

1. Cessation and non-repetition

Israel is further under an obligation to cease internationally wrongful acts and to offer

“appropriate assurances and guarantees of non-repetition”.

588

Although not counted as

reparations in their own right, the principles of cessation and non-repetition are crucial aspects

of the law relating to the consequences of internationally wrongful acts. Cessation requires the

state responsible for the internationally wrongful act to “cease that act, if it is continuing”.

589

This reaffirms the principle that the breach of an international obligation does not affect the

continued duty of the responsible state to abide by that obligation.

590

In this vein, the

International Court of Justice held that:

583

Rainbow Warrior XX Reports of International Arbitral Awards (1990) pp. 215, 272–273.

584

See International Law Commission, “Articles on State Responsibility, Report of the International Law

Commission on its Twenty-Eighth Session”, Commentary.

585

Ibid., art. 14(2), p. 59.

586

International Law Commission, “Articles on State Responsibility, Report of the International Law Commission

on its Twenty-Eighth Session”, Commentary art. 18(3), p. 93.

587

The de Becker case, vol. II Yearbook of the European Convention on Human Rights, 1958–1959 (The Hague),

(1960) p. 232 et seq.

588

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 30(a) and (b).

589

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 30(a).

590

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 29.

- 85 -

[W]hile official acts performed by the Government of South Africa on behalf of or

concerning Namibia after the termination of the Mandate are illegal and invalid, this

invalidity cannot be extended to those acts, such as, for instance, the registration of

births, deaths and marriages, the effects of which can be ignored only to the detriment

of the inhabitants of the Territory.

591

In Cyprus v Turkey (1994), the European Court of Human Rights cited with approval the

precedent in the International Court of Justice advisory opinion on South West Africa on the

non-recognition of South Africa’s illegal rule in Namibia, which nonetheless still guaranteed

the validity of certain legislative and administrative acts of the illegal entity.

592

Consequently,

the European Court of Human Rights explicated, “[i]t appears indeed difficult to admit that a

State is made responsible for the acts occurring in a territory unlawfully occupied and

administered by it and to deny that State the opportunity to try to avoid such responsibility by

correcting the wrongs imputable to it in its courts”.

593

In this vein, Israel, despite the illegality

of the occupation, continues to have obligations towards the occupied Palestinian population

until the occupation is completely dismantled.

Cessation is often confused with restitution, discussed below; however, it is crucial to note that

while circumstances may render restitution impossible, cessation is always possible, and

always required.

594

Similarly, the obligation of cessation is not subject to a proportionality

analysis, as is the case for restitution.

595

In the context of the occupation of the Palestinian

territory, the obligation of cessation would require Israel to unconditionally end the occupation

of the West Bank, East Jerusalem and the Gaza Strip.

Regarding non-repetition, the International Law Commission Articles on State Responsibility

provide for a conditional obligation for the wrongdoing state “to offer appropriate assurances

and guarantees of non-repetition, if circumstances so require”.

596

This conditional language

reflects the “exceptional character” of assurances and guarantees of non-repetition.

597

Indeed,

in general, the International Court of Justice assumes that states will act in good faith once their

conduct has been established to be in breach of international law. In the Jurisdictional

Immunities case, the Court stressed that:

while the Court may order the State responsible for an internationally wrongful act to

offer assurances of non-repetition to the injured State, or to take specific measures to

ensure that the wrongful act is not repeated, it may only do so when there are special

circumstances which justify this, which the Court must assess on a case-by-case

basis.

598

591

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) para. 125.

592

Cyprus v. Turkey, App No 25781/94 (ECHR, 10 May 2001), para. 86, 93.

593

Ibid., para. 101.

594

Oliver Corten, “The Obligation of Cessation” in James Crawford, Alain Pellet, and Simon Olleson (eds), The

Law of International Responsibility (OUP 2010) pp. 548–549.

595

International Law Commission, “Articles on State Responsibility, Report of the International Law

Commission on its Twenty-Eighth Session”, Commentary, art. 30, para. 7.

596

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 30(b).

597

International Law Commission, “Articles on State Responsibility, Report of the International Law

Commission on its Twenty-Eighth Session”, Commentary, art. 30, para. 13.

598

International Court of Justice, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening)

(Judgment) International Court of Justice Reports 2012, p. 99, para. 138; See also International Court of Justice,

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea

intervening) (Judgment) International Court of Justice Reports 2002 p. 303, para. 318.

- 86 -

Nevertheless, the Court has previously taken such steps. In LaGrand, the International Court

of Justice held that Germany’s request that the United States issue assurances and guarantees

of non-repetition of certain breaches of the Vienna Convention on Consular Relations was

admissible and thus within the powers of the Court.

599

It further found that a mere apology

made by the United States to Germany following a breach by the former of the obligation to

give consular notification was an insufficient remedy,

600

but ultimately held that certain steps

taken by the United States to ensure its compliance with the Convention “must be regarded as

meeting Germany’s request for a general assurance of non-repetition”.

601

Relevant factors for an assessment of assurances or guarantees of non-repetition may include

consideration of whether there is a real risk of repetition, the nature of the obligation breached

(particularly when the obligation constitutes a jus cogens norm), and the seriousness of the

breach.

602

Given Israel’s non-implementation of the prior advisory opinion on the construction

of the Annexation Wall, assurances and guarantees of non-repetition may be an insufficient

remedy.

603

2. Forms of reparation

As noted above, reparations may take the form of restitution, compensation or satisfaction, and

may be awarded “either singly or in combination”.

604

The International Law Commission

Articles on State Responsibility establish a nominal hierarchy, with restitution taking

precedence, followed by compensation, with satisfaction ostensibly serving as a final option.

605

This is undercut somewhat by an injured state’s right to decide on what form of reparation it

wishes to seek.

606

Each of the forms of reparation have a proportionality requirement built in,

intended to ensure that reparations are not used as punitive instruments, but instead contribute

towards eliminating or mitigating the harm suffered as a result of the wrongful act.

607

2.1 Restitution

Article 35 of the International Law Commission Articles on State Responsibility provides that

“a State responsible for an internationally wrongful act is under an obligation to make

restitution, that is, to re-establish the situation which existed before the wrongful act was

committed”.

608

Restitution is closely linked to cessation but may be distinguished in that

restitution requires the re-establishment of “the status quo ante, i.e. the situation that existed

prior to the occurrence of the wrongful act”.

609

It is not necessary to engage in any speculation

599

International Court of Justice, LaGrand (Germany v United States of America) (Judgment) International

Court of Justice Reports 2001, p. 466, para. 48.

600

Ibid., para. 123.

601

Ibid., para. 124.

602

Sandrine Barbier, “Assurances and Guarantees of Non-Repetition”, in James Crawford, Alain Pellet, and

Simon Olleson (eds), The Law of International Responsibility (OUP 2010) pp. 557–558.

603

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) p. 136.

604

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 34.

605

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), arts. 35–37.

606

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 43.

607

International Law Commission, “Articles on State Responsibility, Report of the International Law

Commission on its Twenty-Eighth Session”, Commentary, art. 34, para. 5.

608

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 35.

609

International Law Commission, “Articles on State Responsibility, Report of the International Law

Commission on its Twenty-Eighth Session”, Commentary, art. 35, para. 2.

- 87 -

as to what the state of affairs may have been had the wrongful act never been committed.

610

Rather, restitution may require the return of unlawfully seized property,

611

the release of

unlawfully detained persons,

612

or the cancelling or withdrawal of legal or administrative

instruments such as arrest warrants.

613

In the context of occupied Palestine, appropriate

restitution may thus take the form of the release of Palestinian political prisoners; the returning

of properties, including cultural property seized by the occupying authorities; the

dismantlement of unlawful Israeli settlements in the occupied West Bank and East Jerusalem;

the lifting of the blockade of the Gaza Strip; the dismantling of the institutionalized regime of

discriminatory apartheid laws, policies and practices; and the dismantling of the occupying

administration.

Article 35 introduces two key limitations on the obligation to provide restitution. Pursuant to

these provisions, restitution may not be appropriate where it is materially impossible,

614

where the burden on the wrongdoing state is disproportionate to the benefit of restitution over

simple financial compensation.

615

Thus, restitution must only be made “as far as possible” to

rectify the effects of the wrongful act.

616

If this is not possible, compensation may be the more

appropriate solution. Situations in which the Court found restitution to be inappropriate include

the aftermath of the Bosnian genocide

617

and the felling by Nicaragua of trees in Costa Rica

which were over 200 years old.

618

It is also worth noting that in its previous Wall advisory

opinion, the Court appeared to acknowledge that it may not have been materially possible for

Israel to return “the land, orchards, olive groves and other immoveable property seized from

any natural or legal person for purposes of construction of the wall in the Occupied Palestinian

Territory”.

619

It is conceivable that this may prove equally true in the context of Israel’s well-

documented and long-running practice of house demolitions, or other situations wherein

property has been entirely destroyed or irreparably altered. For example, the denial of

Palestinian access to develop Area C, which amounts to more than 60 per cent of the West

Bank and contains “more than two thirds of grazing land, with more than 2.5 million productive

trees destroyed under occupation since 1967”, has cost the Palestinian economy USD $1 billion

in lost revenues, amounting to 25 per cent of gross domestic product (GDP), and while

restitution might not be feasible, certainly these losses can and should be compensated.

620

Restitution would similarly be impossible where the issue concerns the killing of Palestinian

civilians.

610

Permanent Court of International Justice, Case Concerning the Factory at Chorzów, (Merits) Permanent

Court of International Justice Reports, Series A No 17 (1928) p. 47: “[R]eparation must, as far as possible, wipe

out all the consequences of that illegal act and reestablish the situation which would, in all probability, have

existed if that act had not been committed.”

611

International Court of Justice, Temple of Preah Vihear (Cambodia v Thailand) (Merits) International Court

of Justice Reports 1962, p. 6.

612

International Court of Justice, United States Diplomatic and Consular Staff in Tehran, International Court of

Justice Reports 1980, p. 3.

613

International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v

Belgium), International Court of Justice Reports 2002, p. 3.

614

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 35(a).

615

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 35(b).

616

International Court of Justice, Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) International

Court of Justice Reports 1997, p. 7, paras. 149–150.

617

International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime

of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), (Judgment) International Court of Justice

Reports 2007, p. 43, para. 460.

618

James Crawford, State Responsibility: The General Part (CUP 2014) 513.

619

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 153.

620

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People and their Human Right to Development: Legal Dimensions”, (2021) 12.

- 88 -

Forms of restitution may therefore include the immediate cessation of hostilities

621

and the

immediate, unconditional and complete withdrawal of occupying forces from the territory,

without delay and without negotiation. Significantly, the International Court of Justice further

held that South Africa had an obligation to “withdraw its administration from the Territory of

Namibia”, and similarly, encouraged in Chagos that the British administration of the Chagos

Archipelago end “as rapidly as possible”.

622

Specific obligations on the occupying Power to

bring the illegal situation to an end and make restitution include the dismantling of the

administrative regime,

623

including the repeal of legislative measures contravening

international law;

624

the unconditional release of all political prisoners;

625

and the immediate

halting of transfer in of settlers and deportation and forced displacement of the occupied

population.

626

In the South West Africa advisory opinion, Judge Castro opined that the

consequences for South Africa’s mala fide occupation must be “the restitution of property,

assets and the fruits thereof to the people of Namibia. Noting that all public assets, such as

railways, ports, waterways among others, remain the exclusive property of the Namibian

people and there can be no bar of limitation to their restitution”.

627

2.2 Compensation

Where restitution would be unavailable, compensation may be granted.

628

Claims may be made

for damage suffered either by an injured state or by other natural or legal persons,

629

including

a loss of profits.

630

The International Law Commission Articles on State Responsibility do not

allow for punitive damages, and restrict themselves wholly to compensatory awards, with the

possible exception of serious breaches of obligations erga omnes.

631

It is also of note that

Article 38 allows for interest to be applied to “any principle sum” due by way of reparation.

The text of Article 36(2) limits the award of compensation to damages which are “financially

assessable”, thus precluding what may be described as “moral damage”.

632

However, the Court

621

United Nations Security Council resolution 1177 (1998), para. 1. In May 1988, Ethiopia occupied

approximately 1,000km

of territory in and around the town of Badme, following a border conflict with Eritrea.

United Nations Security Council resolution 1177 (1998) issued a general condemnation on resort to use of force

and demanded that both parties immediately cease hostilities, but did not pronounce on the occupation per se.

622

International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from

Mauritius in 1965 (Advisory Opinion) International Court of Justice Reports 2019 p. 25 (25 February 2019)

para. 178.

623

The International Court of Justice, having found the situation illegal, held that South Africa had an obligation

to bring it to an end and “withdraw its administration from the Territory of Namibia”. International Court of

Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West

Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) International Court of

Justice Reports 16 (1971) para. 118.

624

United Nations General Assembly resolution 74/168 (21 January 2020) Situation of Human Rights in the

Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, para. 6(e).

625

A/76/503–S/2021/908, Letter dated 29 October 2021 from the Permanent Representative of Ukraine to the

United Nations addressed to the Secretary-General (2 November 2021).

626

United Nations General Assembly resolution 2270 (XXII), Question of Territories under Portuguese

Administration, para. 5.

627

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971), Separate Opinion of Judge De Castro, p. 218.

628

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 36 International Court

of Justice, Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) International Court of Justice

Reports 1997, para. 152.

629

Ibid., para. 5.

630

Articles on the Responsibility of States for Internationally Wrongful Acts (2001), art. 36(2).

631

James Crawford, State Responsibility: The General Part (CUP 2014) pp. 524–525.

632

International Law Commission, “Articles on State Responsibility, Report of the International Law

Commission on its Twenty-Eighth Session”, Commentary, art. 36(1).

- 89 -

has allowed for compensation for moral or non-material damage in the Diallo case, wherein

Judge Greenwood stressed that:

just as the damages are no less real because of the difficulty of estimating them, so the

determination of compensation should be no less principled because the task is difficult

and imprecise. What is required is not the selection of an arbitrary figure but the

application of principles which at least enable the reader of the judgment to discern the

factors which led the Court to fix the sum awarded. Moreover, those principles must be

capable of being applied in a consistent and coherent manner, so that the amount

awarded can be regarded as just, not merely by reference to the facts of this case, but

by comparison with other cases.

633

The Court has moreover recently reaffirmed in its reparations judgment in Armed Activities on

the Territory of the Congo that compensation may be made for both material and moral damage,

so long as there is a sufficient causal link between the internationally wrongful act and the

injury suffered.

634

In establishing such a link, the Court very relevantly stressed that:

Uganda is under an obligation to make reparation for all damage resulting from the

conflict in Ituri, even that resulting from the conduct of third parties, unless it has

established, with respect to a particular injury, that it was not caused by Uganda’s

failure to meet its obligations as an occupying Power.

635

In February 2022, the International Court of Justice ruled that Uganda is under an obligation

to make reparations for “illegal use of force, violation of sovereignty and territorial integrity,

military intervention, occupation of Ituri, violations of international human rights law and of

international humanitarian law, looting, plunder and exploitation of the DRC’s natural

resources”.

636

The reparations ordered by the Court included damages to persons, property and

natural resources, amounting to USD $325 million, reflecting the “harm suffered by individuals

and communities as a result of Uganda’s breach of its international obligations”.

637

There is also an obligation to make reparation “for all ensuing damage” from the illegal

occupation as an act of aggression, and from violations of peremptory norms.

638

Examples of

such reparations would include, for example, a duty of compensation for individuals,

corporations and communities for illegal acts of requisition,

639

such as property appropriations

and the pillage of natural resources, where compensation is at least equal to the value of the

goods disappeared.

640

In many cases, it might be necessary to establish a neutral arbitral claims

633

International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the

Congo) (Compensation Judgment) International Court of Justice Reports 2012, Declaration of Judge

Greenwood, p. 391, para. 7.

634

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v Uganda) (Judgment Reparations) (9 February 2022) para. 93.

635

Ibid., para. 96.

636

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v Uganda) (Judgment) (19 December 2005), para. 69.

637

Ibid., para. 405.

638

Ibid., Declaration of Judge Ad Hoc Verhoeven, p. 359, para. 5.

639

United Nations Security Council resolution 674 (29 October 1990), para. 8. Reminding Iraq “that under

international law it is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their

nationals and corporations, as a result of the invasion and illegal occupation of Kuwait”; International Court of

Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v

Uganda) (Judgment Reparations) (9 February 2022), para.405.

640

Greco-German Mixed Arbitral Tribunal, Evghenudes v German State, 5 International Law Reports (20

December 1929) Case No. 296; Meuron, Fazy, Guex, Portugal v Germany, 5 International Law Reports (1929–

- 90 -

commission to examine mass claims arising from the consequences of the occupying Power’s

violations.

641

That being said, it is important that reparations are transformative and place the

Palestinian people at the centre of the process, with input into the agenda and means. It must

be noted as well that even after Israel withdraws from the territory, it still remains accountable

for any violations of international law relating to its obligations towards Palestine.

The construction of the Wall has severely impacted the economy, as Israel’s appropriation of

Palestinian land results in “major disruptions to economic activity”.

642

For this reason, the

United Nations Register of Damage Caused by the Construction of the Wall in the Occupied

Palestinian Territory was established under General Assembly resolution ES-10/17 to record

and document the “damage emanating from construction of the separation barrier in the West

Bank, not covering any other measure taken by the occupying Power”.

643

As of July 2020, this

body has included some 36,023 claims in its Register.

644

This body may be of use to the Court

should it be required to assess damages owed in connection with the occupation of the West

Bank, East Jerusalem and the Gaza Strip.

645

2.2 Assessing compensation in occupied Palestine

A 2019 study by the United Nations Conference on Trade and Development assessed “the

impact of the fiscal costs of occupation on the economy,”

646

examining losses from the denial

of the various benefits of “diverse natural and water resources” and other goods and services

“such as petroleum, energy, water, health services, sanitation and waste services”. It further

calculated estimates from “the leakage of tax revenues from indirect imports”,

647

examining

Israel’s “monopoly on exports to the Palestinian market of some high value goods, such as

agricultural products, animal feed and medical products”.

648

The study concluded that the

cumulative fiscal costs to the Palestinian economy from Israel’s occupation, during the period

2000–2019, are estimated at $58 billion, “equivalent to 4.5 times the size of the West Bank

regional economy”.

649

Significantly, the United Nations Conference on Trade and

Development recommended “[t]erminating and reversing the evolving and accumulated costs

of the Israeli occupation for the Palestinian people, which cannot be realized without ending

the occupation”.

650

1930) Case No. 92; United Nations Security Council resolution 545 (1983), para. 4; United Nations Security

Council resolution 546 (1984), paras. 6–7. Reaffirmed Angola’s entitlement to compensation for damage to life

and property from South Africa’s aggression and continuing occupation.

641

For example, the peace treaty signed between Ethiopia and Eritrea on 12 December 2000, which provided for

the establishment of a neutral arbitral Claims Commission.

642

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: The Unrealized Oil and Natural Gas Potential” (2019) p. 22.

643

United Nations Conference on Trade and Development, “Report on United Nations Conference on Trade and

Development assistance to the Palestinian people: Developments in the economy of the Occupied Palestinian

Territory”, TD/B/63/3, (28 September 2016) para. 46.

644

UN Doc A/ES-10/839, Letter from the Secretary-General addressed to the President of the General Assembly

(24 July 2020) para. 5; United Nations Conference on Trade and Development, “Report on United Nations

Conference on Trade and Development Assistance to the Palestinian People: Developments in the Economy of

the Occupied Palestinian Territory”, TD/B/63/3, (28 September 2016) para. 46. The records catalogued by the

documents had been collected in 233 Palestinian communities, with a population of 946,285”.

645

Ibid.

646

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: Cumulative Fiscal Costs” (2019) p. 44.

647

Ibid., p. 1.

648

Ibid., p. 15.

649

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People and their Human Right to Development: Legal Dimensions” (2021) p. 32.

650

Ibid.

- 91 -

Similarly, an authoritative World Bank study in 2013 examined losses and spillover effects to

the Palestinian economy from Israel’s continued occupation of Area C and imposed access

restrictions. The projected impact to Palestinian industries, including, among others,

transportation, electricity, water and telecommunications infrastructure, and the inability of the

Palestinian Authority “to develop roads, airports, or railways in or through Area C”, was

estimated “to amount to some USD 3.4 billion – or 35 percent of Palestinian GDP in 2011” in

losses to the Palestinian economy.

651

In terms of industry-specific costs, Israel’s restrictions on

telephone providers alone, by limiting the bands they are allowed to use, resulted in losses of

between USD $436 million and USD $1,050 million from 2013 to 2015.

652

Meanwhile, Israeli

quarrying companies operating in Area C were shown in official Israeli government estimates

to have produced, in 2008 alone, 12 million tons of gravel materials, with a market value of

USD $900 million.

653

Notably, direct and indirect costs to the Palestinian National Authority

from “physical, legal or regulatory restrictions on Palestinian investments or production” in the

sectors of agriculture, Dead Sea minerals, quarries, construction, tourism, communications and

cosmetics, amounted to an estimated USD $4.4 billion in losses in 2015.

654

In the Gaza Strip, “economic costs of occupation related to the closure and restrictions and the

military operations in the period 2007–2018” were estimated by the United Nations Conference

on Trade and Development at USD $16.7 billion, equivalent to “six times the GDP of Gaza”

in 2018.

655

However, the estimates did not include “costs in the billions of dollars, borne by

the Palestinian people and the international community, resulting from the destruction of

infrastructure, residential units and commercial structures that occurred during the recurrent

hostilities and from reconstruction”.

656

The numerous military offensives on the Gaza Strip

have resulted in significant economic losses for occupied Palestine. During Israel’s military

offensive Operation Cast Lead between December 2008 and January 2009, economic losses to

the Gaza Strip amounted to USD $4 billion.

657

In 2014, the Palestinian Economic Council for

Research and Development projected that Gaza’s reconstruction costs amounted to USD $7.8

billion.

658

More recently, Israel’s May 2021 eleven-day offensive on the Gaza Strip resulted in

destruction amounting to an “estimated $290 million to $380 million in direct damages, and

$105 million to $190 million in economic losses”.

659

Damage to educational facilities

amounted to an estimated USD $3.5 million.

660

651

The World Bank, “Area C and the Future of the Palestinian Economy” (2014) p. 5.

652

ESCWA, “Economic and Social Repercussions of the Israeli Occupation on the Living Conditions of the

Palestinian People in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population

in the Occupied Syrian Golan”, A/77/90–E/2022/66 (8 June 2022) p. 29.

653

The World Bank, Area C and the Future of the Palestinian Economy (2014) p. 25; Yesh Din, Petition for an

Order Nisi and an Interim Injunction, The Supreme Court of Israel, Jerusalem (2009) which quotes the

“National Blueprint (NBP) 14b – NBP of Mining and Quarrying Sites for the Construction and Road Building

Business” (2008).

654

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: Cumulative Fiscal Costs” (2019) p. 39.

655

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: The Impoverishment of Gaza under Blockade” (2020) p. 34.

656

Ibid.

657

United Nations Conference on Trade and Development, 2015, Report on United Nations Conference on

Trade and Development Assistance to the Palestinian People: Developments in the Economy of the Occupied

Palestinian Territory, TD/B/62/3, (6 July 2015).

658

Noah Browning, “Palestinians put Gaza Reconstruction Cost at $7.8 billion”, Reuters, 4 September 2014.

659

ESCWA, “Economic and Social Repercussions of the Israeli Occupation on the Living Conditions of the

Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab Population

in the Occupied Syrian Golan”, A/77/90–E/2022/66 (8 June 2022) p. 14, para. 81.

660

Ibid., p. 18, para. 111.

- 92 -

The denial of access to the Palestinian Authority to develop its substantial gas fields in Gaza

Marine 1 and 2, held under a naval blockade off the Gaza coast, has resulted in lost reserve

values of USD $7.162 billion over 18 years.

661

Correspondingly, the denial of access to develop

the Meged oil fields in occupied Palestine has cost the Palestinian economy 1,525 billion

barrels of oil, amounting to an estimated USD $67.9 billion in economic losses.

662

Significantly, the United Nations Economic and Social Commission for West Asia (ESCWA)

contends that Palestinians may have a continuing claim to oil and gas reserves in historic

Palestine, noting in particular that “General Assembly resolution 181 of 29 November 1947

allocated 42.88 per cent of historic Palestine”.

663

Since 1948, the losses to Palestinians are

estimated to exceed USD $300 billion.

664

Appositely, Israel has international responsibility to

make “full reparation for the injury caused by the internationally wrongful act”, including

monetary compensation which is “full and adequate”.

665

2.3 Satisfaction

The final form of reparation for internationally wrongful acts is satisfaction. This may be

required where restitution or compensation are inadequate,

666

and may involve, inter alia, an

acknowledgement of a breach of international law, an expression of regret, or a formal

apology.

667

The Internal Law Commission, in its commentaries, notes that satisfaction is “not

a standard form of reparation” and ought to be considered of an “exceptional character”.

668

with restitution and compensation, satisfaction may not be used as a punitive tool, and thus

must be proportionate to the injury suffered and “may not take a form humiliating to the

responsible State”.

669

Satisfaction may be granted by an international court or tribunal directly. In the Corfu Channel

case, the International Court of Justice did precisely that, stating, “to ensure respect for

international law, of which it is the organ, the Court must declare that the action of the British

Navy constituted a violation of Albanian sovereignty”.

670

This declaration is in accordance

with the request made by Albania through her Counsel, and is in itself appropriate

satisfaction.

671

Just satisfaction “may consist in an acknowledgement of the breach, an

expression of regret, a formal apology or another appropriate modality”.

672

In 1993, for

example, President Clinton offered a formal apology to the people of Hawaii for the US “illegal

661

United Nations Conference on Trade and Development, “The Economic Costs of the Israeli Occupation for

the Palestinian People: The Unrealized Oil and Natural Gas Potential” (2019) p. 15.

662

Ibid., pp. 15, 25.

663

Ibid., p. 30.

664

Ibid., p. 15.

665

Articles on Responsibility for Internationally Wrongful Acts (2001), art. 31; Addressing South Africa’s

occupation of Angola, the United Nations Security Council called for the need for full and adequate

compensation, United Nations Security Council resolution 546 (1984) paras. 7–8.

666

Articles on Responsibility for Internationally Wrongful Acts (2001), art. 37(1).

667

Articles on Responsibility for Internationally Wrongful Acts (2001), art. 37(2).

668

Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), art. 37(1).

669

Articles on Responsibility for Internationally Wrongful Acts (2001), art. 37(3).

670

International Court of Justice, Corfu Channel Case (United Kingdom v Albania) (Merits Judgment)

International Court of Justice Reports 1949 (9 April 1949) p. 35.

671

International Court of Justice, Corfu Channel Case (United Kingdom v Albania) (Merits Judgment)

International Court of Justice Reports 1949 (9 April 1949) p. 35; International Court of Justice, Arrest Warrant

of 11 April 2000 (Democratic Republic of the Congo v Belgium), International Court of Justice Reports 2002,

para. 75; International Court of Justice, Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), (Judgment) International Court of

Justice Reports 2007, para. 463; International Court of Justice, Certain Questions of Mutual Assistance in

Criminal Matters (Dijbouti v France) (Judgment) International Court of Justice Reports 2008, p. 177, para. 204.

672

Articles on Responsibility for Internationally Wrongful Acts (2001), art. 37(2).

- 93 -

overthrow” of the Kingdom of Hawaii on 17 January 1893, in denial of the rights of Native

Hawaiians to self-determination.

673

In other cases, apologies have been required to be made by

the offending state. In the I’m Alone arbitration, the United States was directed to apologize to

Canada in addition to providing compensation.

674

Similarly, in Rainbow Warrior, the Prime

Minister of France was required to apologize to the Prime Minister of New Zealand.

675

As has

been seen above, however, in LaGrand the Court found that an apology alone was insufficient

satisfaction, and could only be considered adequate when coupled with the United States’

assurance of non-repetition. Finally, and very recently, the Court in Armed Activities on the

Territory of the Congo declined to order Uganda to conduct criminal investigations of those

responsible for grave breaches of the Geneva Conventions as a form of satisfaction, noting that

Uganda already “is required to investigate and prosecute by virtue of the obligations incumbent

on it”.

676

In summation, it is difficult to discern whether the Court may consider satisfaction to be

necessary in the context of the unlawful occupation of Palestine. Nevertheless, given the nature

and seriousness of the international law violations, an apology would appear to be an

insufficient remedy for the generational harm caused to the Palestinian people. Instead, the

primary focus should be on restitution and compensation for the affected individuals,

communities and corporations. Crucially, it is incumbent upon the Court to address the root

causes of the illegal belligerent occupation and the illegal occupation of internationally

protected Mandate territory held as a “sacred trust”, drawing from the important precedents of

its comparative jurisprudence in the South West Africa and Chagos advisory opinions to end

the Israeli occupation as rapidly as possible. This warrants the full dismantling of both the Civil

Administration and Coordination of Government Activities in the Territories, the dismantling

of the apartheid regime on both sides of the Green Line, and the dismantling of the illegal

settlement enterprise. Further, full compensation should take into consideration the reports of

the World Bank, ESCWA and the United Nations Conference on Trade and Development

detailing the broad sweep of economic losses from the occupation including, inter alia, fiscal

leakages, losses from denied access to natural resources in Area C, and Israel’s exploitation of

Palestinian oil, gas, quarries, Dead Sea minerals, water and agricultural lands.

B. What legal consequences arise, for all States and the United Nations, to bring

illegal occupation to a complete and immediate end in conformity with international

law?

In addition to Israel’s responsibility for internationally wrongful acts, and its obligations of

cessation, non-repetition and reparation, there are also some key Third State and international

obligations owed to Palestine. This section maps out the general responsibility of Third States

for internationally wrongful acts, and provides an overview of international practice drawn

from international resolutions on Third State responsibility in comparative occupations which,

673

Joint Resolution, 107 STAT. 1510 Public Law 103-150 – November 23, 1993; On 4 December 1893, in his

State of the Union Address, US President Grover Cleveland stressed his “embarrassment” at the overthrow of

Hawaii, stating, “Upon the facts developed it seemed to me the only honorable course for our Government to

pursue was to undo the wrong that had been done by those representing us and to restore as far as practicable the

status existing at the time of our forcible intervention.” President Grover Cleveland, President of the United

States, State of the Union (1893).

674

S. S. “I’m Alone” (Canada v United States) III Reports of International Arbitral Awards (1935) pp. 1609,

1618.

675

Rainbow Warrior XX Reports of International Arbitral Awards (1990) p. 213.

676

International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v. Uganda) (Judgment) International Court of Justice Reports 168 (19 December 2005),

para. 390.

- 94 -

the International Law Commission notes, “express a general idea applicable to all situations

created by serious breaches in the sense of article 40”.

677

1. Third State responsibility for internationally wrongful acts

Given the nature of some internationally wrongful acts, the violating State, all States and the

international community may have an interest in bringing the unlawful conduct to an end.

678

Article 40(2) of the International Law Commission Articles on State Responsibility provides

that “[n]o State shall recognize as lawful a situation created by a serious breach [of peremptory

norms of general international law] nor render aid or assistance in maintaining that

situation”.

679

In the South West Africa advisory opinion, the question turned to Third State

obligations to put an end to the illegal situation, “requiring them to apply other measures of

pressure against South Africa because of its refusal to withdraw from Namibia”.

680

Previously,

in the Wall advisory opinion, the International Court of Justice considered that legal

consequences arise for all States, which are “under an obligation not to recognize the illegal

situation arising from the construction of the wall, not to render aid or assistance in maintaining

that situation and to cooperate with a view to putting an end to the alleged violations and to

ensuring that reparation will be made therefore”.

681

In addition, Third State obligations can

arise for breaches of the Geneva Conventions, where the High Contracting Parties undertake

to “respect and ensure respect for the present Convention in all circumstances”.

682

Article 41(2) of the International Law Commission Articles on International Responsibility

requires that Third States not “render aid or assistance in maintaining that situation”.

683

In South

West Africa, the International Court of Justice examined the consequences arising for Third

States in terms of “putting an end to the illegal situation”.

684

Significantly, the Court drew a

distinction between the steps advanced by Security Council resolution 283 (1970), which the

Court noted it had not been called to advise on, and the obligation of non-recognition incurring

consequences under general international law.

685

Third States, the Court outlined, were “under

obligation to abstain from entering into treaty relations with South Africa in all cases in which

the Government of South Africa purports to act on behalf of or concerning Namibia”.

686

addition, Third States were obliged to abstain from sending diplomatic, consular, or special

missions “to South Africa including in their jurisdiction, the Territory of Namibia”, and

withdraw any agents already there.

687

Implicit in the obligation of non-recognition, Third States

were to “abstain from entering into economic and other forms of relationship or dealings with

677

Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) p. 115,

para. 12.

678

International Court of Justice, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain)

(Judgment Second Phase), International Court of Justice Reports 1970 p. 3 (5 February 1970), p. 32, para. 33.

679

Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), art. 41(2).

680

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) para. 117; Ibid., Separate Opinion of Judge Petrén, p. 136.

681

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 146.

682

Article 1, Fourth Geneva Convention (1949).

683

Articles on Responsibility of States for Internationally Wrongful Acts (2001), art. 41(2).

684

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) para. 117.

685

Ibid., paras. 118, 121.

686

Ibid., para. 122.

687

Ibid., para. 123.

- 95 -

South Africa on behalf of or concerning Namibia which may entrench its authority over the

Territory”.

688

1.1 Resolutions expressing a general idea applicable to all situations

As previously noted, the Commentary of the International Law Commission to Article 40

indicates that the resolutions of the Security Council, for example, “prohibiting any aid or

assistance in maintaining the illegal apartheid regime in South Africa or Portuguese colonial

rule … express a general idea applicable to all situations created by serious breaches in the

sense of article 40”.

689

This section draws from General Assembly and Security Council

resolutions on comparative illegal occupations highlighting Third State practice on non-

recognition and not rendering aid and assistance, which may be applicable to all situations of

serious breaches of peremptory norms of international law.

Foremost, there is a general obligation not to recognize as lawful the situation resulting from

an internationally wrongful act, nor render aid or assistance in maintaining this situation.

690

For

example, the Security Council has called on Third States “[n]ot to recognize any regime” set

up by Iraq in occupied Kuwait.

691

The General Assembly has likewise called on Third States

to not “recognize as lawful the situation resulting from the [Armenian] occupation of the

territories of the Republic of Azerbaijan, nor render aid or assistance in maintaining this

situation”.

692

This has also been described as “the principle of non-recognition of the

conquest”.

693

Other aspects of non-recognition include the continued obligation of Third States

to recognize the inalienable rights of return of the displaced and exiled members of the

occupied population, exemplified in the Armenian occupation of Azerbaijan.

694

Acting under Chapter VII, the Security Council has requested that all States prevent imports of

all commodities and products from, and not make available any commercial, industrial or

public utility to, an aggressor occupying Power.

695

Such measures are taken on order to secure

the withdrawal of the occupying Power.

696

Similarly, the Security Council called on Third

States to implement fully an arms embargo against South Africa.

697

Likewise, the Council of

Europe urged Member States to refrain from providing weapons and munitions supplies to

Armenia which might continue the occupation and called for the “withdrawal of the occupying

forces”.

698

Further, the General Assembly called on “all States” to desist from providing any

assistance to Portugal, including military trainings, within or outside the North Atlantic Treaty

688

Ibid., para. 124.

689

Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) p. 115,

para. 12.

690

United Nations General Assembly resolution 62/243 (25 April 2008), The situation in the occupied territories

of Azerbaijan, para. 5.

691

United Nations Security Council resolution 660 (1990), para. 2; United Nations Security Council resolution

661 (1990), paras. 1 and 9; United Nations Security Council resolution 541(1983).

692

United Nations General Assembly resolution 62/243, (25 April 2008) The situation in the occupied territories

of Azerbaijan, para. 5.

693

Argentina, Civil Court of the Capital, Miletich v CIA Generale de Construcciones, SA, 12 International Law

Reports 12 (7 July 1943) Case No. 163.

694

United Nations General Assembly resolution 62/243, (25 April 2008) The situation in the occupied territories

of Azerbaijan, para. 5; United Nations General Assembly resolution 75/192 Situation of human rights in the

Autonomous Republic of Crimea and the City of Sevastopol, Ukraine (16 December 2020).

695

United Nations Security Council resolution 661 (1990), para. 3.

696

A/RES/2372(XXII) (12 June 1968), para. 9.

697

United Nations Security Council resolution 546 (1984), para. 4.

698

Council of Europe, Recommendation 1690 (2005), The Conflict over the Nagorno-Karabakh Region dealt

with by the OSCE [Organization for Security and Co-operation in Europe] Minsk Conference.

- 96 -

Organization (NATO) framework, in order to prevent the sale or supply of military equipment

to Portugal, including materials for the manufacture of weapons and ammunition.

699

States also have a clear obligation to collaborate to bring the occupation to an end, where its

continuation would breach peremptory norms of international law.

700

For example, Third States

have assisted in collecting information to ascertain the incurred losses arising from Iraq’s

illegal occupation of Kuwait.

701

In Namibia, international coordination took the form of an Ad

Hoc Subcommittee of the Security Council with oversight to examine the implementation of

resolutions requesting that Third States refrain from economic dealings with South Africa.

702

More recently, an International Platform brought together United Nations Member States as

well as representatives of NATO, the European Union, the Council of Europe and the

Organization for Democracy and Economic Development to assess relevant and targeted

countermeasures for “achieving the de-occupation of Crimea”.

703

1.2 Countermeasures to induce Israel to comply with international law obligations

While the injured State can take countermeasures against the violating State for internationally

wrongful acts, more tenuous is the right of Third States to take countermeasures against the

violating State for breaches of peremptory norms.

704

The inclusion of such provision was

controversial at the drafting of the Articles on State Responsibility; however, there has since

been considerable and growing practice of countermeasures taken by Third States for breaches

of peremptory norms.

705

Such targeted countermeasures may include abstaining from diplomatic

and consular relations; ending the supply of military equipment and trainings; implementing arms

embargoes; and implementing trade and financial restrictions, assets freezes, and individual

sanctions. The latter may be aimed at settler organizations, political representatives, military

personnel, banks, financial institutions and corporations that are financing and contributing to the

settlement enterprise or carrying out other ancillary violations of international law against the

protected Palestinian population and helping to underpin the illegal occupation.

2. Responsibility of the United Nations

Finally, the primary responsibility for the decolonization of Palestine is vested in the United

Nations, which has particular responsibility for supervising the return of refugees and

699

United Nations General Assembly resolution 2270 (XXII), Question of Territories under Portuguese

Administration, para. 8(a)–(c).

700

Articles on Responsibility of States for Internationally Wrongful Acts (2001), art. 41(1).

701

United Nations Security Council resolution 674 (29 October 1990), para. 8; United Nations General

Assembly resolution 2270 (XXII) (2 March 1991) Question of Territories under Portuguese Administration,

para. 8(a)–(c). Resolution 686.

702

United Nations Security Council resolution 276 (30 January 1970), paras. 5–6.

703

The Platform recommended using “appropriate mechanisms of the UN, the Council of Europe, the OSCE,

other international and regional organizations to address issues related to the temporary occupation”. Such

include the establishment of Crimea focal points in the respective Ministries of Foreign Affairs, and to

“recognize the role of national parliaments in addressing the temporary occupation of Crimea and to encourage

the coordination of activities on Crimea between national parliaments as well as within inter-parliamentary

assemblies”. The Platform also planned to “invite international and national non-governmental organizations,

think-tanks and the expert community to contribute to the network’s activities”. A/76/503–S/2021/908, Letter

dated 29 October 2021 from the Permanent Representative of Ukraine to the United Nations addressed to the

Secretary-General (2 November 2021).

704

Articles on Responsibility of States for Internationally Wrongful Acts (2001), art. 54.

705

Annie Bird, “Third State Responsibility for Human Rights Violations”, 898 EJIL 21 (2010), pp. 883, 896–

898.

- 97 -

overseeing the dismantling of the illegal occupying administration and withdrawal of military

forces.

The United Nations has permanent responsibility with regard to the Question of Palestine “until

the question is resolved in all its aspects in accordance with international law and relevant

resolutions”.

706

For example, in the Wall advisory opinion, the International Court of Justice

found that “[t]he United Nations, and especially the General Assembly and the Security

Council, should consider what further action is required to bring to an end the illegal situation

resulting from the construction of the wall and the associated regime, taking due account of the

present advisory opinion”.

707

Likewise, the International Court of Justice may call on the

United Nations to play a central role in matters pertaining to the return of Palestinian refugees,

the withdrawal of armed forces, ending the occupation, and organizing a plebiscite.

Accordingly, similar to the decision in Chagos, certain matters, such as the resettlement into

Palestine of returned Palestinian nationals, may be an issue that the International Court of

Justice addresses to the General Assembly for the completion of decolonization, including calls

for the cooperation of all States in this regard.

708

The General Assembly has previously

condemned Portugal’s “settlement of foreign immigrants in the Territories” of Guinea-Bissau,

and called on Portugal “to stop immediately the systematic influx of foreign immigrants into

these Territories and the forcible exporting of African workers to South Africa”.

709

It similarly

recognized the inalienable right of the population expelled from the occupied territory of

Azerbaijan to return,

710

and the inalienable right of return of the Kampuchean people.

711

Likewise, the Set of Ideas on an Overall Framework Agreement on Cyprus (1992) included

important provisions for the return of displaced persons.

712

A ceasefire agreement, meanwhile,

included provision for return of the internally displaced and refugees to the territory of

Nagorno-Karabakh under the supervision of the United Nations High Commissioner for

Refugees.

713

Generally, the General Assembly and Security Council may call for the withdrawal of armed

forces and the termination of occupation, in cases of occupations arising from acts of

aggression. In response to the invasion and occupation of Kuwait, the Security Council

demanded that Iraq “withdraw immediately and unconditionally all its forces”.

714

Likewise,

706

United Nations General Assembly resolution 71/23, (30 November 2016).

707

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 70, para. 163(E).

708

International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from

Mauritius in 1965 (Advisory Opinion) International Court of Justice Reports 2019 p. 25 (25 February 2019)

para. 181.

709

United Nations General Assembly resolution 2270 (XXII), Question of Territories under Portuguese

Administration, para. 5.

710

United Nations General Assembly resolution 62/243 (25 April 2008) The Situation in the Occupied

Territories of Azerbaijan, para. 5.

711

United Nations General Assembly resolution 39/5 The Situation in Kampuchea (30 October 1984).

712

“The settlement of those who select to return will take place after the persons who will be affected have been

satisfactorily relocated. If the current occupant is also a displaced person and wishes to remain, or if the property

has been substantially altered or has been converted to public use, the former permanent resident will be

compensated or will be provided an accommodation of similar value.” “Set of Ideas on an Overall Framework

Agreement on Cyprus” (1992) para. 84.

713

Statement by President of the Republic of Azerbaijan, Prime Minister of the Republic of Armenia and

President of the Russian Federation (10 November 2020), para. 7; Mandate of the Co-Chairmen of the

Conference on Nagorno-Karabakh under the auspices of the OSCE (“Minsk Conference”) (Vienna, 23 March

1995).

714

United Nations Security Council resolution 660 (1990), para. 2; United Nations Security Council resolution

661 (1990), paras. 1 and 9.

- 98 -

the General Assembly has called on Portugal to apply “without delay” the principle of the right

to self-determination, and to withdraw military forces from Guinea-Bissau.

715

The dismantling

and non-recognition of the occupying Power’s administrative regime has similarly featured in

a number of international resolutions.

716

The General Assembly called for the immediate

withdrawal of all foreign troops from occupied Kampuchea and for all States to refrain from

acts of aggression.

717

Similarly, Turkey, in the first universal periodic review of Armenia in

2010, recommended the withdrawal of Armenian troops and “ending [the] occupation of

Azerbaijani territories”.

718

In this vein, important recommendations were offered by the International Court of Justice in

the South West Africa advisory opinion to instruct the United Nations on its role in terminating

the occupation. These recommendations included the withdrawal of South Africa’s troops in

consultation with the United Nations, whereupon the United Nations would substitute in its

place United Nations control.

719

That being said, for Palestine, which has been subjected to a

half-century of occupation, the imposition of an international trusteeship may amount to a

continuing breach of the right of self-determination. Additionally, in Namibia a plebiscite was

to be held under United Nations supervision, specifying that where a clear preponderance of

views was established “in support of a particular course and objective, that course should be

adopted so that the desired objective may be achieved as early as possible”.

720

The proposed

plebiscite was not undertaken specifically in order to bring about the independence of Namibia

or a change of administration, but simply to obtain information.

721

This type of plebiscite would

be useful to gather more specific information to facilitate the exercise of self-determination of

the Palestinian people.

2.1 Decolonizing Palestine

It is the duty of every State to “promote, through joint and separate action, realization of the

principle of equal rights and self-determination of peoples in accordance with the provisions

of the Charter, and to render assistance to the United Nations in carrying out the responsibilities

entrusted to it by the Charter regarding the implementation of the principle”.

722

What the

715

United Nations General Assembly resolution 2270 (XXII), Question of Territories under Portuguese

Administration, para. 5.

716

United Nations General Assembly resolution 35/19 (11 November 1980) paras. 3, 9; United Nations General

Assembly resolution 37/253 (1983).

717

United Nations General Assembly resolution 34/22 The Situation in Kampuchea (14 November 1979), para.

718

A/HRC/15/9, “Report of the Working Group on the Universal Periodic Review” (6 July 2010), para. 32; See

also United Nations Security Council resolution 822 (1993), which called for the withdrawal of all occupying

forces from the Kelbadjar district and other occupied areas. In July 1993, the UN Security Council noted with

alarm Armenia’s seizure of the Agdam district and called again for the withdrawal of occupying forces from the

district, United Nations Security Council resolution 853 (1993), para. 3. In October 1993, the UN Security

Council called for the immediate implementation of the CSCE Minsk Group’s “Adjusted timetable”, and the

withdrawal of forces from the occupied territories, United Nations Security Council resolution 874 (1993), para.

5; Similarly, the Parliamentary Assembly of the Council of Europe called for the “withdrawal of the occupying

forces” from Azerbaijan, Recommendation 1690 (2005), The Conflict over the Nagorno-Karabakh Region Dealt

with by the OSCE Minsk Conference.

719

International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)

International Court of Justice Reports 16 (1971) p. 65.

720

Ibid.

721

Ibid., Separate Opinion of Judge De Castro, p. 179.

722

Declaration on Principles of International Law Friendly Relations and Co-Operation Among States in

Accordance with the Charter of the United Nations, preamble. United Nations General Assembly resolution

1654 (XVI) established a Special Committee of seventeen members, nominated by the President of the General

- 99 -

decolonization process should look like has been expounded in a number of International Court

of Justice cases, including Namibia, Northern Cameroons and Chagos. Judge Dillard explains

that while “the existence of ancient ‘legal ties’ … may influence some of the projected

procedures for decolonization, [they] can have only a tangential effect in the ultimate choices

available to the people”.

723

Rather, “[i]t is for the people to determine the destiny of the territory

and not the territory the destiny of the people”. For example, in Northern Cameroons, the Court

considered that it is within the International Court of Justice’s discretion whether issues

pertaining to the Mandate can still be adjudicated on.

724

For Palestine, this is particularly

pertinent given continuing denial of the exercise of self-determination since the British

Mandate. In Chagos the International Court of Justice concluded that decolonization was not

carried out in a manner consistent with the right of peoples of Mauritius to self-determination

and, accordingly, the United Kingdom’s continued administration of the territory constituted

an unlawful act, which the UK was obliged to end as rapidly as possible.

725

A subsequent

General Assembly resolution on Chagos demanded that the UK “withdraw its colonial

administration from the Chagos Archipelago unconditionally within a period of no more than

six months from the adoption of the present resolution, thereby enabling Mauritius to complete

the decolonization of its territory as rapidly as possible”.

726

In this vein, the modalities of

completing the decolonization are within the competence of the General Assembly, while all

States have obligations erga omnes in order to cooperate to put the modalities into effect.

727

For Palestine, diplomatic efforts since the 1990s appear to be premised on a dubious “land for

peace” formula which, if used to deprive the protected Palestinian population of their

inalienable rights to self-determination and permanent sovereignty over national resources,

would also constitute an internationally wrongful act.

728

It is important to note that, as early as

1967, Security Council resolution 242 (1967) emphasized the “inadmissibility of the

acquisition of territory by war”, a prohibition subsequently expressed in at least eight Security

Council resolutions on occupied Palestine.

729

Delegates to the meeting stressed that “with

regard to the principles that need to be affirmed, we deem it most essential that due emphasis

Assembly, to examine the application of the declaration and to make recommendations. United Nations General

Assembly resolution 1654 (XVI) (27 November 1961) The Situation with Regard to the Implementation of the

Declaration on the Granting of Independence to Colonial Countries and Peoples.

723

International Court of Justice, International Court of Justice Reports 1975 p. 12 (16 October 1975), Separate

Opinion of Judge Dillard, p. 122.

724

International Court of Justice, Case Concerning the Northern Cameroons (Cameroon v United Kingdom)

(Preliminary Objections Judgment) International Court of Justice Reports 1963 p. 15 (2 December 1963) p. 37.

725

International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from

Mauritius in 1965 (Advisory Opinion) International Court of Justice Reports 2019 p. 25 (25 February 2019)

para. 178.

726

United Nations General Assembly resolution 73/295 (22 May 2019) para. 3.

727

International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from

Mauritius in 1965 (Advisory Opinion) International Court of Justice Reports 2019 p. 25 (25 February 2019)

paras. 179–180. “Every State has the duty to promote, through joint and separate action, realization of the

principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and

to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter

regarding the implementation of the principle.” United Nations General Assembly resolution 2625 (XXV) (24

October 1970) Declaration on Principles of International Law Concerning Friendly Relations and Cooperation

Among States in Accordance with the Charter of the United Nations.

728

United Nations General Assembly resolution 71/23 (30 November 2016), paras. 4, 16; United Nations

General Assembly resolution 67/19 (29 November 2012), paras. 4, 5; United Nations General Assembly

resolution 66/17 (30 November 2011), para. 15;

729

United Nations Security Council resolution 242 (1967), preamble; United Nations Security Council

resolution 252 (1968), preamble; United Nations Security Council resolution 267 (1969), preamble; United

Nations Security Council resolution 271 (1969), preamble; United Nations Security Council resolution 298

(1971), preamble; United Nations Security Council resolution 476 (1980), preamble; United Nations Security

Council resolution 478 (1980), preamble; United Nations Security Council resolution 681(1990), preamble;

United Nations Security Council resolution 2334 (2016), preamble.

- 100 -

be put on the inadmissibility of acquisition of territory by war and hence on the imperative

requirement that all Israel armed forces be withdrawn from the territories occupied”.

730

Hughes

notes that regardless of calls for political negotiation to end the occupation, “the withdrawal of

Israel from the occupied territory is a ‘fundamental prerequisite’” to negotiation.

731

As such,

Israel’s obligation of withdrawal from the illegally occupied territory is unqualified, immediate

and absolute.

732

General Assembly resolutions include important qualifications for Israel’s

“unconditional and total withdrawal”, meaning that withdrawal is not to be made the subject

of negotiation, but is rather the termination of an internationally wrongful act.

733

In this vein,

Security Council resolution 476 (1980) reaffirms “the overriding necessity for ending the

prolonged occupation of Arab territories occupied by Israel since 1967, including

Jerusalem”.

734

Security Council resolution 2334 (2016) likewise urges, without delay,

international and diplomatic efforts to “end to the Israeli occupation that began in 1967”.

735

VI. Conclusion

Throughout the decades, United Nations Special Rapporteurs on the Situation of Human Rights

in the occupied Palestinian territories have questioned the legality of the occupation. In 2007,

former United Nations Special Rapporteur John Dugard pondered the legal consequences

arising from a prolonged occupation: “[W]hen such a regime has acquired some of the

characteristics of colonialism and apartheid … Does it continue to be a lawful regime? Or does

it cease to be a lawful regime, particularly in respect of ‘measures aimed at the occupants’ own

interests’?” Dugard suggested the question be put to the International Court of Justice for an

730

United Nations Security Council 1382

Meeting, The Situation in the Middle East, S/Agenda/1382, para. 27.

Mr Makonnen, Ethiopia. See also Mr. Parthasarathi (India), “Members of the Council will recall that during the

fifth emergency special session an overwhelming majority of Member States of the United Nations, whether

they voted for the Latin American draft resolution or the non-aligned, Afro-Asian draft resolution, had

reaffirmed the principle of non-acquisition of territory by military conquest and had supported the call for the

withdrawal of Israel armed forces to the position they held prior to the outbreak of the recent conflict on 5 June

1967”.

731

David Hughes, “Of Tactics, Illegal Occupation and the Boundaries of Legal Capability: A Reply to Ardi

Imseis”, EJIL, vol. 31 (2020) pp. 1087–1103, 1100.

732

See Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal Occupation of Palestine,

1967–2020” EJIL, vol. 31 (2020) p. 1055.

733

United Nations General Assembly resolution A/RES/36/147E (16 December 1981); United Nations General

Assembly resolution A/RES/36/226A (17 December 1981); United Nations General Assembly resolution

A/RES/37/123F (20 December 1982); United Nations General Assembly resolution A/RES/38/180D (19

December 1983); United Nations General Assembly resolution A/RES/39/146A (14 December 1984); United

Nations General Assembly resolution A/RES/40/168A (16 December 1985); United Nations General Assembly

resolution A/RES/41/162A (4 December 1986); United Nations General Assembly resolution A/RES/42/209B

(11 December 1987); United Nations General Assembly A/RES/43/54A (6 December 1988); United Nations

General Assembly resolution A/RES/44/40A (4 December 1989); United Nations General Assembly resolution

A/RES/45/83A (13 December 1990); United Nations General Assembly resolution A/RES/46/82A (16

December 1991).

734

United Nations Security Council resolution 476 (1980), para. 1. More specifically, the UN Security Council

has affirmed that “all legislative and administrative measures and actions taken by Israel, the occupying Power,

which have altered or purport to alter the character and status of the Holy City of Jerusalem, and in particular the

recent ‘basic law’ on Jerusalem, are null and void and must be rescinded forthwith”. See United Nations

Security Council resolution 478 (20 August 1980); See also United Nations Security Council resolution 267

(1969), which “censures in the strongest terms all measures taken to change the status of the City of Jerusalem”

and “confirms that all legislative and administrative measures and actions taken by Israel which purport to alter

the status of Jerusalem, including expropriation of land and properties thereon, are invalid and cannot change

that status”.

735

United Nations Security Council resolution 2334 (2016), para. 9.

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advisory opinion.

736

Similarly, in the final report of his mandate, former United Nations Special

Rapporteur Richard Falk recommended an International Court of Justice advisory opinion “on

the legal status of the prolonged occupation of Palestine, as aggravated by prohibited transfers

of large numbers of persons from the occupying Power and the imposition of a dual and

discriminatory administrative and legal system”.

737

Applying a four-point test, former United Nations Special Rapporteur Michael Lynk concluded

that Israel’s annexation of territory, breaches of the principle of temporariness, breaches of its

duty as occupying Power to act in the best interests of the occupied population, and failure to

administer the territory in good faith

738

together indicated that the belligerent occupation had

crossed the “red line” into illegality.

739

More recently, United Nations Special Rapporteur

Francesca Albanese drew on three separate rationales underpinning the illegality of Israel’s

occupation. First, the occupation breaches jus in bello principles of temporariness, is conducted

in violation of the best interests of the occupied population, and has resulted in the annexation

of Palestinian territory. Second, the occupation breaches peremptory norms of international

law, including the prohibition of acquisition of territory through use of force, the imposition of

institutionalized racially discriminatory regimes including apartheid, and the denial of the

exercise of the right of self-determination. Third, the occupation constitutes an act of

aggression.

740

This study lends its weight to the growing body of evidence that Israel’s belligerent occupation

of the Palestinian territory is illegal, basing its conclusions on two separate and stand-alone

grounds. First, the study finds that there is evidence that Israel attacked Egypt in 1967 in a pre-

emptive strike, a prohibited use of force amounting to an act of aggression. This renders the

subsequent belligerent occupation of the territory an illegal use of force ab initio. Second, even

assuming for the purposes of argument that Israel’s use of force was a legitimate act of self-

defence, Israel is administering the Occupied Palestinian Territory in breach the principles and

rules of international humanitarian law and peremptory norms of international law. Therefore,

the conduct of the occupation, in breach of the principles of immediacy, necessity and

proportionality, exceeds the reasonable limits of self-defence and amounts to an illegal use of

force. Further, that the occupation is carried out in a manner which denies the inalienable right

of the Palestinian people to self-determination – including their right to an independent State

of Palestine, a right held in “sacred trust” since the establishment of the Palestine Mandate – is

further indicative of an unlawful administration of territory in the context of an assessment of

proportionality.

The most prescient road map for the de-occupation and decolonization of the Palestinian

territory comes in the form of the rich tapestry of Third State and international

recommendations advanced in the Chagos and Namibia cases. It is also clear that the general

law on State responsibility for grave violations of peremptory norms of international law can

draw from the resolutions of the Security Council “as a general idea applicable to all situations

created by serious breaches”, including the prohibition of aid or assistance in maintaining the

736

UNHCR “Implementation of General Assembly resolution 60/251 of 15 March 2006 Entitled ‘Human Rights

Council’, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories

occupied since 1967, John Dugard” (29 January 2007) A/HRC/4/17, para. 62.

737

UNHCR “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories

occupied since 1967, Richard Falk” (13 January 2014) A/HRC/25/67, para. 81(b).

738

UNHCR “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories

occupied since 1967, Michael Lynk” (23 October 2017) A/72/43106, paras. 27 – 37.

739

Ibid., para. 64.

740

UNHCR “Report of the Special Rapporteur on the situation of human rights in the Palestinian territories

occupied since 1967, Francesca Albanese” (21 September 2022) A/77/356, p. 5, para. 10(b).

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illegal regime.

741

Naturally, the most appropriate forum for examining the legality of the

occupation is the International Court of Justice. While the Court briefly examined the issue of

self-defence in the Wall advisory opinion, it only addressed new arguments of self-defence and

not continuing acts of self-defence ad bellum. There, Israel had argued that “the fence is a

measure wholly consistent with the right of States to self-defence enshrined in Article 51 of

the Charter” as per the resolutions of the Security Council.

742

Responding, the Court found that

Article 51 had no relevance to the case of the construction of the Annexation Wall, and the

provision did not apply to threats originating in territory held under its effective control.

743

Whether the occupation is illegal ab initio or subsequently becomes illegal, the consequences

should be the immediate, unconditional and total withdrawal of Israel’s military forces; the

withdrawal of colonial settlers; the repeal of all discriminatory laws; and the dismantling of the

military administrative regime; with clear instructions that withdrawal for breach of an

internationally wrongful act is not subject to negotiation. Full and commensurate reparations

should be accorded to the affected Palestinian individuals, corporations and entities, for the

generational harm caused by Israel’s land and property appropriations, house demolitions,

pillage of natural resources, denial of return, and other war crimes and crimes against humanity

orchestrated for the colonialist, annexationist aims of an illegal occupant.

741

United Nations Security Council resolution 1284 (1999), p. 115, para. 12.

742

UN Doc. A/ES-10/PV.21, (20 October 2003) Illegal Israeli actions in Occupied East Jerusalem and the rest of

the Occupied Palestinian Territory, p. 7.

743

International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Advisory Opinion) International Court of Justice Reports 136 (2004) para. 139. “However, Israel does

not claim that the attacks against it are imputable to a foreign State. The Court also notes that Israel exercises

control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying

the construction of the wall originates within, and not outside, that territory.”

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