The legality of the Israeli occupation of Palestine , which has continued since 1967 and is the longest military occupation in modern history, [1] is a subject that has received much less attention than violations of international humanitarian law (IHL) and international human rights law (IHRL) that have occurred during the occupation. [2] [3] [4] Multiple United Nations General Assembly resolutions have described the continuing occupation as illegal. The general thrust of international law scholarship addressing this question has concluded that, regardless of whether it was initially legal, the occupation has become illegal over time. [5] Reasons cited for its illegality include use of force for impermissible purposes such as annexation, violation of the Palestinian right to self-determination, that the occupation itself is an illegal regime "of alien subjugation, domination and exploitation", or some combination of these factors. [6] Eyal Benvenisti suggested that refusal by an occupier to engage in good faith with efforts to reach a peaceful solution should not only be considered illegal but as outright annexation. [7] International law scholar Ralph Wilde [8] states that "The common way of understanding the extended duration of the occupation... is a prolonged violation of international law". [9] However, Israel denies that it is occupying Palestine and maintains that its presence is legal.
On 20 October 2022, the Permanent United Nations Fact Finding Mission on the Israel Palestine conflict released a report [10] to the United Nations General Assembly, calling on the Security Council to end Israel’s "permanent occupation" and on individual UN member states to prosecute Israeli officials. The report found "reasonable grounds" to conclude that the occupation "is now unlawful under international law due to its permanence" and Israel's "de-facto annexation policies." [11] [12] Israeli prime minister Yair Lapid said the report is "biased, false, inciting and blatantly unbalanced" and tweeted that "Not all criticism of Israel is anti-Semitism, but this report was written by anti-Semites … and is a distinctly anti-Semitic report". [13] The International Court of Justice (ICJ) accepted a request from the United Nations (UN) as to the Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem. [14] The court has set 25 July 2023 for presentation of written statements and 25 October 2023 for subsequent written comments on the statements. [15]
The Israeli occupation of Palestine began in 1967 is the longest military occupation in modern history. [1] Since the Israeli disengagement from Gaza in 2005, it is the prevailing opinion that Gaza is still under occupation according to international law; the Israeli occupation of the West Bank is an ongoing occupation. [16] [17] Israel has argued that its rule in the Palestine is not occupation, but also because neither the Hague Regulations nor the GCIV limits the duration of the occupation or requires the occupant to restore the territories to the sovereign before a peace treaty is signed, [7] cites traditional occupation law as justification for the legality of its actions. [18] According to many interpretations, Israel has purportedly annexed parts of Palestine, including East Jerusalem, but such annexation is illegal under international law under the prohibition on the acquisition of territory through force. Its treatment of other areas of the West Bank has been described as a de facto annexation and "creeping annexation" [19] showing an ultimate intention to permanently take over the territory. [20] [21] The first report of the Permanent United Nations Fact Finding Mission on the Israel Palestine conflict [22] [23] released on 7 June 2022, said that the root cause of the problems lay in "perpetual occupation" with no intent to end it and that Israel wanted "complete control" over the occupied area. [24] [25] [26] On 11 November 2022, the United Nations General Assembly Fourth Committee passed a resolution 98 to 17 with 52 abstentions to request an International Court of Justice opinion on how "Israeli policies and practices "affect the legal status of the occupation, and what are the legal consequences that arise for all states and the United Nations from this status." The resolution, condemned by Israel, will go for a final assembly vote before the end of the year. [27] [28] [29]
According to international law, annexation is not an acceptable motive for the use of force in international law, nor is it legal to acquire territory through the use of force. [30] An occupation maintained for the purpose of territorial aggrandizement is no different from an explicit annexation according to international law—both are illegal. [21] Israel therefore may not annex the Palestinian territories, nor may it continue the occupation because of desire to incorporate these territories. [31] Israel states that the occupation is justified as self-defense, but there has been little legal analysis of the occupation in relation to laws governing the use of force. [32] For the occupation to be legal, it would need to be a justified and proportional use of force when it began and continuously from 1967 to the present, in self-defense of the original threat or a comparable threat. The legality of using force in self-defense against non-state actors is disputed. Many international law experts and states doubt that extended occupations can ever be legal according to international law. [33] Illegal occupation constitutes an act of aggression in international law and could also be a crime of aggression. [34] [35]
Some commentators have proposed that an occupation that is initially legal will remain so until a peace treaty is signed. [36] A peace treaty however is not synonymous with the absence of a threat justifying the use of force in self-defense, without which military aggression becomes illegal. [37] According to Wilde, "it is not credible to regard the occupation as a necessary and proportionate means of ensuring Israel’s security" and therefore, the continuation of the occupation "has been and is unlawful under the law on the use of force". [38] Many United Nations General Assembly resolutions have condemned the Israeli occupation of Palestine as a violation of international law and the Charter of the United Nations. [38] [39]
The Palestinian right to self-determination is internationally recognized. [40] Regardless of whether a Palestinian state currently exists, the sovereignty in the occupied Palestinian territories belongs to the Palestinian people. [41] International law scholar Ralph Wilde states, "given that the Palestinian people have not agreed that all or part of the oPt is to be Israeli territory, the default requirement of the law of self-determination is that they should be immediately freed from the impediments to self-rule", including a speedy end to the occupation. [42]
The question of the legality of the occupation is largely separate from violations of international humanitarian law (IHL) and international human rights law (IHRL) that have occurred during the occupation. It is also separate from international criminal law including the occurrence of war crimes and the argument that Israel's policies constitute a crime of apartheid. [43] [2] According to Wilde, these violations of jus in bello "just aggravate the illegality" of the occupation. [44] Valentina Azarova writes that systematic violations of IHL and human rights are intertwined with the issue of prolonged occupation. [45] Azarova also suggested that unlawfully prolonged occupations can also "be treated as manifestations of outlawed colonial practices of foreign domination, political subjugation, and economic exploitation". [46] An interpretive statement [47] issued by the United Nations Human Rights Committee ruled that acts of aggression occasioning loss of life inherently violate the right to life guaranteed by the International Covenant on Civil and Political Rights. [48]
Occupation law, as a branch of IHL, regulates the conduct of occupation but does not address the question of the legality of the occupation itself. [49] In a 2005 paper, Orna Ben-Naftali, Aeyal Gross, and Keren Michaeli argue that because occupation is intended to be temporary, a prolonged occupation would inherently violate occupation law. [50] [51] They rate the Israeli occupation of Palestine as illegal for this reason and others. [52] According to Gross, a prolonged occupation also undermines the rule that sovereignty may not derive from occupation. [53]
In European Journal of International Law , Ardi Imseis argues that "Israel’s occupation has become illegal over time for being in violation of three jus cogens norms of international law: the prohibition on the acquisition of territory through force, the obligation to respect the right of peoples to self-determination and the obligation to refrain from imposing regimes of alien subjugation, domination and exploitation inimical to humankind, including racial discrimination". [2]
Vito Todeschini argues that the prolonged and indefinite nature of the occupation of the West Bank, including East Jerusalem, makes it illegal under both jus ad bellum and international humanitarian law. [54]
In 2017, Michael Lynk, United Nations Special Rapporteur on the occupied Palestinian territories, said that the Israeli occupation was illegal. His successor, Francesca Albanese, said that the occupation crossed a "red line of legality" because "according to international law, occupation is to be temporary, justified by military necessity and in the interest of the occupied people". [55]
According to Azarova, "Since the very presence of such occupying states in the occupied territory presents a threat to the indigenous civilian population of the occupied territory, the principal task of international law is to eliminate such unlawful situations through restitution of the occupied territory to the status quo ante bellum ". [35] Azarova has encouraged European Union policymakers to uphold the legal obligation of non-recognition of violations of international law—including Israel's de facto annexation of the West Bank—and to "rethink a failed peace-making model". [21]
Imseis states that if the occupation is an internationally wrongful act, an immediate end to the wrong—rather than waiting for a negotiated compromise—would be the correct solution according to international law on state responsibility. [2] Conducting negotiations while the illegal occupation is maintained, in his view, "could be abused by the more powerful party to consolidate its illegal actions under a cloak of legitimacy provided by the UN". [56] According to the principle of ex injuria jus non oritur , the violator of international law may not derive a benefit from its violations. [57] [58]
Focus on the methods of occupation and individual IHL and IHRL has been criticized for overlooking the larger question of whether the occupation itself is legal, or even legitimizing the occupation itself. [59] [2] [3] [4] [60] The overall focus on the occupation has been criticized by Wilde and Hani Sayed as reinforcing the two-state solution paradigm, and erasing important political questions such as the consequences of the 1948 Palestinian expulsion and flight, Palestinian refugees, the status of Palestinian residents of Israel, and other issues relevant to the Israel–Palestinian conflict. [61] [62]
Israeli settlements, also called Israeli colonies, are the civilian communities built by Israel throughout the Israeli-occupied territories. They are populated by Israeli citizens, almost exclusively of Jewish identity or ethnicity, and were first established after Israel's victory in the Six-Day War of June 1967. The international community considers Israeli settlements to be illegal under international law, but Israel disputes this. The expansion of settlements often involves the confiscation of Palestinian land and resources, leading to displacement of Palestinian communities and creating a source of tension and conflict. Settlements are often protected by the Israeli military and are frequently flashpoints for violence against Palestinians. Further, the presence of settlements and Jewish-only bypass roads creates a fragmented Palestinian territory, seriously hindering economic development and freedom of movement for Palestinians.
The West Bank, so called due to its relation to the Jordan River, is the larger of the two Palestinian territories. A landlocked territory near the coast of the Mediterranean Sea in the Levant region of West Asia, it is bordered by Jordan and the Dead Sea to the east and by Israel to the south, west, and north. The territory has been under Israeli occupation since 1967.
The Palestinian territories are the two regions of the former British Mandate for Palestine that have been occupied by Israel since the Six-Day War of 1967, namely the West Bank and the Gaza Strip. The International Court of Justice (ICJ) has referred to the West Bank, including East Jerusalem, as "the Occupied Palestinian Territory", and this term was used as the legal definition by the ICJ in its advisory opinion of July 2004. The term occupied Palestinian territory was used by the United Nations and other international organizations between October 1999 and December 2012 to refer to areas controlled by the Palestinian National Authority, but from 2012, when Palestine was admitted as one of its non-member observer states, the United Nations started using exclusively the name State of Palestine. The European Union (EU) also uses the term "occupied Palestinian territory". The government of Israel and its supporters use the label "disputed territories" instead.
East Jerusalem is the sector of Jerusalem that was held by Jordan after the 1948 Arab–Israeli War, as opposed to the western sector of the city, West Jerusalem, which was held by Israel. Under international law, East Jerusalem is considered a part of the West Bank and, therefore, of the Palestinian territories. A number of states recognize East Jerusalem as the capital of the State of Palestine, whereas other states assert that East Jerusalem "will be the capital of Palestine", while referring to it as "an occupied territory".
The Jordanian administration of the West Bank officially began on April 24, 1950, and ended with the decision to sever ties on July 31, 1988. The period started during the 1948 Arab-Israeli War, when Jordan occupied and subsequently annexed the portion of Mandatory Palestine that became known as the West Bank, including East Jerusalem. The territory remained under Jordanian control until it was occupied by Israel during the 1967 Six Day War and eventually Jordan renounced its claim to the territory in 1988.
The International law bearing on issues of Arab–Israeli conflict, which became a major arena of regional and international tension since the birth of Israel in 1948, resulting in several disputes between a number of Arab countries and Israel.
Israel has occupied the Palestinian territories and the Golan Heights since the Six-Day War of 1967. It previously occupied the Sinai Peninsula and southern Lebanon as well. Prior to Israel's victory in the Six-Day War, occupation of the Palestinian territories was split between Egypt and Jordan, with the former having occupied the Gaza Strip and the latter having annexed the West Bank; the Sinai Peninsula and the Golan Heights were under the sovereignty of Egypt and Syria, respectively. The first conjoined usage of the terms "occupied" and "territories" with regard to Israel was in United Nations Security Council Resolution 242, which was drafted in the aftermath of the Six-Day War and called for: "the establishment of a just and lasting peace in the Middle East" to be achieved by "the application of both the following principles: ... Withdrawal of Israeli armed forces from territories occupied in the recent conflict ... Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force."
The status of territories captured by Israel is the status of the Gaza Strip, the West Bank, the Golan Heights, and the Sinai Peninsula, all of which were captured by Israel during the 1967 Six-Day War.
Israel's policies and actions in its ongoing occupation of the Palestinian territories have drawn accusations that it is committing the crime of apartheid. Leading Palestinian, Israeli and international human rights groups have said that the totality and severity of the human rights violations against the Palestinian population in the occupied territories, and by some in Israel proper, amount to the crime against humanity of apartheid. Israel and some of its Western allies have rejected the accusation, with the former often labeling the charge antisemitic.
Christopher John Robert Dugard is a South African professor of international law. His main academic specializations are in Roman-Dutch law, public international law, jurisprudence, human rights, criminal procedure and international criminal law. He has served on the International Law Commission, the primary UN institution for the development of international law, and has been active in reporting on human-rights violations by Israel in the Palestinian territories.
Annexation, in international law, is the forcible acquisition and assertion of legal title over one state's territory by another state, usually following military occupation of the territory. In current international law, it is generally held to be an illegal act. Annexation is a unilateral act where territory is seized and held by one state, as distinct from conquest, and differs from cession, in which territory is given or sold through treaty.
The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal on one of two bases: that they are in violation of Article 49 of the Fourth Geneva Convention, or that they are in breach of international declarations. The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention applies to the Israeli-occupied territories.
Orna Ben-Naftali is the rector of the College of Management Academic Studies and the Emile Zola Chair for Human Rights. She has previously served as dean of the Striks School of Law, College of Management Academic Studies.
Israeli law is enforced in Israeli settlements and among Israeli civilians in Area C of the West Bank, a Palestinian territory under military occupation and therefore otherwise subject to military law. Some provisions are applied on a personal basis, such that it applies to Israeli residents rather than territory. Application of the laws has created "enclaves" of Israeli law in the Israeli-occupied West Bank, and the terms "enclave law" and "enclave-based justice" describe the resulting legal system.
The West Bank, including East Jerusalem, has been under military occupation by Israel since 7 June 1967, when Israeli forces captured the territory, then ruled by Jordan, during the Six-Day War. The status of the West Bank as a militarily occupied territory has been affirmed by the International Court of Justice and, with the exception of East Jerusalem, by the Israeli Supreme Court. The official view of the Israeli government is that the laws of belligerent occupation do not apply to the territories, which it considers instead "disputed", and it administers the West Bank, excepting East Jerusalem, under the Israeli Civil Administration, a branch of the Israeli Ministry of Defense. Considered to be a classic example of an "intractable conflict", the length of Israel's occupation was already regarded as exceptional after two decades, and is now the longest in modern history. Israel has cited several reasons for retaining the West Bank within its ambit: a claim based on the notion of historic rights to this as a homeland as claimed in the Balfour Declaration of 1917; security grounds, both internal and external; and the deep symbolic value for Jews of the area occupied.
Following the 2021 Israel–Palestine crisis, the United Nations Human Rights Council voted on 27 May 2021 to set up a United Nations fact-finding mission to investigate possible war crimes and other abuses committed in Israel and the occupied Palestinian territories.
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem is a proceeding in the International Court of Justice (ICJ), stemming from a resolution adopted by the United Nations General Assembly (UNGA) in December 2022, requesting the Court to render an advisory opinion. In January 2023, the ICJ acknowledged a request from the UNGA for an advisory opinion on the legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory, including East Jerusalem. Public hearings opened on Monday, 19 February 2024 in The Hague with 52 states and three international organizations participating.
According to the United States Department of State and international, Palestinian and Israeli human rights organizations, there have been credible reports of human rights violations committed against Palestinians by Israel, some amounting to war crimes and crimes against humanity.